Paron (Migration)

[2024] AATA 3333

Paron (Migration) [2024] AATA 3333 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emiliano Paron

REPRESENTATIVE:  Mr Arthur Vasilopoulos (MARN: 0002668)

CASE NUMBER:  2413621

HOME AFFAIRS REFERENCE(S):          BCC2023/7253398

MEMBER:David McCulloch

DATE:2 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 September 2024 at 9:03am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – financial hardship – homelessness – impact on Australian employers – positive course progress – decision under review affirmed   

LEGISLATION

Crimes Act 1914, Vic, s 20
Migration Act 1958, ss 116, 140
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 21 May 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Italy born on 31 July 1976. The visa that has been cancelled was granted on 12 May 2022 for a stay period until 10 October 2025.

3. The applicant was issued with a Notice of Intention to Consider Cancellation of the visa (NOICC) on 14 February 2024.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against the law of the Commonwealth or State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 22 August 2024 at 9.30 am to give evidence and present arguments. The applicant and his representative participated via a Tribunal hearing room in Melbourne connecting with the Member in Sydney by video using Microsoft Teams. The Tribunal also received oral evidence from Mr Sam Leo, the applicant’s employer. The Tribunal was assisted with the use of an interpreter in the Italian language.

6. The interpreter and witness attended by Teams.

7. 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

8. 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?

9. 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 (Cth) (the Regulations). In the present case, reg 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

10. The NOICC indicates that a Court Order Notice of the County Court of Victoria dated 7 September 2023 determined that the applicant was convicted of ‘Charge 1 Cultivate a controlled plant – cannabis’. The applicant was convicted and sentenced to 6 months imprisonment but with an order pursuant to s 20(1)(b) of the Crimes Act 1914 that the applicant be released upon security by recognisance of $1,000 and to be on good behaviour for 12 months.

11. The response to the NOICC on the applicant’s behalf accepts the conviction and sentence.

12. In the hearing the applicant acknowledged the conviction and sentence.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the 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 Procedural Instruction ‘General visa cancellation powers’.

15. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

16. The submission on behalf of the applicant in response to the NOICC indicates the following. It indicates that following the completion of the applicant’s ­Advanced Diploma of Leadership and Management he will be returning to Italy to live with his mother and continue his business as a metal fabricator.

17. It is indicated that the applicant has lived in Australia since 2018. He will return to Italy with a greater capacity to operate his business in Italy which he has run since 1998. The applicant has complied with all visa conditions during his stay in Australia.

18. This is his only conviction in Australia or Italy. He pled guilty. It is indicated that the offending was only over a very short period of time – about 19 days – and was not motivated by profit, only access to free accommodation and personal use of cannabis for which he had an addiction since a motorcycle accident in 1994, which resulted in amputation of his lower right leg.

19. It is submitted that the County Court accepted that the applicant was ‘on the brink of homelessness after his savings were drained’ leaving him ‘vulnerable to the attractive offer of free rent in Melbourne’.

20. It is submitted that the applicant was a victim of the downturn in the economy due to

    
    

    COVID-19 and the County Court accepted that he was not an active participant in the share of the profits from the proceeds of crime.

21. Also provided to the Tribunal was the outline of plea submissions on behalf of the applicant in relation to the charge­. The submissions indicate that the applicant came to attend the crop in return for accommodation. This was as a result of the downturn in employment during 2020 and 2021 and the fact that the applicant had depleted his modest savings. Residing at the house also gave the applicant the opportunity to grow modest quantity of cannabis for his personal use. The applicant was not to profit directly from the eventual sale of the cannabis beyond the benefit of accommodation and payment for his cultivation ‘work’.

22. The applicant’s representative provided an email to the Tribunal with supporting documents. The email includes the following (unedited):

    The delegate failed to give sufficient weight to the circumstances that led to my clients offending due to the downturn in the economy caused by the COVID-19 lockdowns in Victoria which resulted in Victoria being in lockdown for a total period of two years. This left my client in a vulnerable position which left him facing homelessness and he in turn succumbed to the lure of free accommodation and access to cannabis for personal use and not for profit. This was acknowledged by the Court that accepted that his offending was not motivated for profit from the sale of cannabis but purely for free accommodation and access to cannabis for which he had an addiction.

    The delegate also failed to give sufficient weight to the needs of my clients employer an issue that was raised in my covering email to the delegate dated 28th February 2024(copy attached). My clients employer Fratelli Engineering will be suffer economic disadvantage as they were relying on my clients presence in Australia to meet their contractual obligations as my client is a highly skilled metal fabricator whose skills are not readily available presently in Australia and even though my client can only work part time his loss will affect his employers ability to meet all of their contractual obligations.

    The delegate also failed to give sufficient weight to the value of the courses my client was enrolled in at the time of applying for his student visa in February 2022; the Diploma and Advanced Diploma of Leadership and Management and his Genuine Temporary Entrant Statement (copy attached) which outlined the benefits to my clients future employment not only in Italy but other countries where he hoped in the future his Australian qualifications and work experience and English language skills could eventually equip him to apply for a supervisory role.

    We are also providing a copy of our submission to the delegate dated 28th February 2024 and a current offer of enrolment for our client in the Diploma and Advanced Diploma of Leadership and Management.

23. The Tribunal has taken into account the submissions. The Tribunal further explored relevant discretionary matters in the Tribunal hearing. These are further dealt with below under headings of relevant discretionary factors.

    Circumstances in which ground of cancellation is made out – extenuating circumstances beyond the applicant’s control

24. The Tribunal asked the applicant in the hearing in light of the guilty plea if he was acknowledging that he participated actively in the cultivation of the cannabis which would seem consistent with the guilty plea. The Tribunal warned the applicant as to the privilege of not answering questions that may further incriminate him.

25. The applicant declined to answer based on not wanting to be reminded of what occurred. The Tribunal indicated to the applicant that the circumstances in which the ground of cancellation is made out is core to the Tribunal’s consideration. The applicant continued not to respond to this question.

26. At the end of the hearing the representative acknowledged, consistent with prior submissions, that the applicant had been actively engaged in the cultivation for 19 days.

27. The applicant in the hearing reiterated economic difficulties and the arrangement facilitating a place to live and him not receiving profits from the sale of the cannabis. When asked in the hearing if the applicant had an addiction to cannabis (as previously indicated) he indicated that he had a mild need for it when there are issues relating to his amputated lower leg.

28. The Tribunal put to the applicant in the hearing that while some allowance may be made of these claimed extenuating factors in the applicant’s favour, it was hard to accept that they serve to fully justify the applicant’s decision to participate in the illegal act of cultivation of cannabis.

29. In response, the applicant indicated that he understood what the Tribunal was saying.

30. Albeit that the applicant’s involvement in the cultivation was not lengthy and the Tribunal accepts that he was not a direct beneficiary of the proceeds from the intended sale of the cannabis, and taking into his account his financial difficulties and mild dependence on cannabis, the Tribunal is not satisfied that these matters, cumulatively considered, constitute extenuating circumstances beyond the applicant’s control fully ameliorating culpability for the applicant engaging in the not insignificant criminal enterprise of attending to the cultivation of cannabis.

31. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Purpose of applicant’s travel to and stay in Australia

32. The applicant agreed in the hearing that he had been in Australia since 2018 on student visas. The applicant has provided evidence in that time of completing an English course, a Certificate I in Business and a Certificate IV in Business. The applicant has provided evidence of passing 10 units in a Certificate II in a Business, albeit not completing the course.

33. In the hearing the applicant indicated that he did not complete the Certificate II because it was taught online during the COVID lockdown period. He had difficulties studying online.  The applicant also indicated that he did study a Certificate III in Business and commenced a Diploma of Leadership and Management but had difficulties with these courses again due to them being taught remotely.

34. The Tribunal is satisfied on the evidence that during his time in Australia the applicant has been a genuine student and has made reasonable progress in his studies, including successfully completing a number of courses. The Tribunal accepts as plausible challenges to the applicant in progression in courses taught remotely during the lockdowns.

35. The Tribunal considers that the applicant has studied during his time in Australia consistent with the purpose of him being in Australia on student visa. This is considered in the applicant’s favour in the exercise of the discretion.

    Hardship if the visa remains cancelled or compelling reasons to remain in Australia

36. In the hearing, the applicant indicated that if the visa is reinstated he will progress in September 2024 to study a Diploma of Leadership and Management. When this finishes at the end of 2025 he will return to Italy.

37. Although there is an indication elsewhere that the applicant would then wish to study an Advanced Diploma of Leadership and Management, the applicant indicated that this is not his intention and he would return to Italy after completing the Diploma.

38. The applicant indicated that it would be a hardship to him if he is not able to complete his objectives in Australia in terms of completing the Diploma. The representative made submissions that it is important that he obtain the Diploma in Leadership and Management because it would facilitate the applicant moving from his current work which involves physical labour into a supervisory role. This is important given the applicant’s physical impediments due to his amputated lower leg.

39. The Tribunal accepts a degree of hardship to the applicant if he is not able to undertake the Diploma of Leadership and Management in Australia to facilitate better work opportunities on return to Italy and moving out of work of a physical nature into that of a supervisory nature, which is important because of the applicant’s physical issues.

40. The applicant’s current employer, Sam Leo, gave evidence to the Tribunal. He is a director and owner of Fratelli Engineering which has employed the applicant as a metal fabricator. The company has employed the applicant since October 2022. The applicant has worked variously for 20 hours per week and then for longer hours per week when visa conditions had been relaxed due to COVID-19. Mr Leo indicates that the company employs six metal fabricators. He indicates that the applicant has very specialised skills which makes him valuable in terms of a current project requiring the creation of manhole covers. The applicant has expertise not regularly available. In terms of employing metal fabricators, a significant amount of training is normally required to get them to the skill of the applicant.

41. The Tribunal put to the applicant that given he is intending to return to Italy at the end of 2025 there will be hardship to the employer at some point in time as a result of his departure. In response, the applicant indicated that his skills allow him to train other metal fabricators up to his standard during the period that he remains working.

42. The Tribunal accepts the relative skill of the applicant as a metal fabricator and its importance to his current employer. The Tribunal accepts some degree of hardship to the employer if they lose the applicant a year before the applicant would have returned to Italy if the visa had been reinstated.

    Other factors

43. Given the applicant’s clear evidence that he intends to return to Italy at the end of 2025 he clearly does not fear persecution or significant harm on return to Italy and thus Australia’s non-refoulement obligations are not relevant.

44. There is no evidence that there are children in Australia whose interests are affected by the cancellation and thus this is not a relevant factor.

45. The applicant’s employer, Mr Leo, gave a positive reference in relation to the applicant’s character. He indicated that he knew of the troubles that the applicant had faced but wanted to indicate that in his experience the applicant was an honest and reliable person. He commented that the applicant got mixed up with the wrong people.

46. The Tribunal takes this testimonial as to the applicant’s good character as a discretionary factor in the applicant’s favour.

    Summary and weighing discretion

47. The Tribunal takes into account the claimed extenuating circumstances resulting in the applicant engaging in the cultivation of cannabis as partially mitigating his responsibility. However, they do not in the Tribunal’s assessment fully explain or justify the applicant becoming involved in a not insignificant criminal enterprise to cultivate a prohibited substance.

48. The applicant’s knowing involvement in the criminal enterprise is significantly adverse to him in the exercise of the Tribunal’s discretion.

49. The Tribunal takes into account the applicant’s on-the-whole positive study history in Australia. The Tribunal accepts a degree of hardship to the applicant if he is prevented from remaining in Australia for another year as he wishes to complete the Diploma of Leadership and Management, including given that this qualification may facilitate moving out of manual work.

50. The Tribunal accepts that the applicant is highly skilled in his employment and that it would create some difficulties for his employer if the applicant has to leave employment one year earlier than originally planned.

51. The Tribunal takes into account the positive character testimonial provided by the applicant’s employer.

52. Balancing discretionary factors, the Tribunal is not satisfied that matters in his favour overcome the circumstances of the conviction, namely the applicant knowingly participating in a not insignificant criminal enterprise to cultivate a prohibited substance.

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

    DECISION

54. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member