Maksoud and Minister for Home Affairs (Migration)
[2019] AATA 825
•10 May 2019
Maksoud and Minister for Home Affairs (Migration) [2019] AATA 825 (10 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1040
Re:Walid Maksoud
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:10 May 2019
Place:Sydney
The Tribunal finds that the decision to refuse a Bridging E (Class WE) Visa should be affirmed.
...................................[sgd].....................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – refusal of visa under s 501(1) – whether the applicant passes the character test – past and present general conduct – disregard for the laws of Australia – whether to exercise discretion to refuse visa – Ministerial Direction No. 79 – protection of the Australian Community – expectation of the Australian Community – non-refoulment obligations – decision affirmed
LEGISLATION
Births Deaths and Marriages Registration Act 1995 (NSW)
Migration Act 1958 (Cth) ss 499, 501
Migration Regulations 1994 (Cth) Schedule 2
CASES
Aciek and Minister for Home Affairs [2018] AATA 2755
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
DND v Minister for Home Affairs (Migration) [2018] AATA 2716
Labi And Minister for Immigration and Border Protection (Migration) [2016] AATA 316
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
R v Laws [2000] NSWSC 885; (2000) 116 A Crim R 70
Uolilo v Minister for Home Affairs [2019] FCA 336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
10 May 2019
The applicant seeks review of a decision of the respondent (“the Minister”) of a decision made on 14 February 2019 by a delegate of the Minister. Such decision found that the applicant’s application for a Bridging E (Class WE) Visa should be refused under section 501 (1) of the Migration Act 1958 (Cth) (“the act”). The refusal was based upon the fact that the applicant did not pass the character test as defined in section 501 (6) of the act. Such determination was made on the basis that the applicant was found to have had in his possession prohibited and illegal drugs and that the possession of such drugs indicated that, in the future, the side-effect of illicit steroid use is an increased risk of aggression and violence and his conduct could place the Australian community at risk should he use such drugs in the future.
FACTS
The applicant was born in Lebanon in 1987.
He completed his primary, secondary and tertiary education in Lebanon. He graduated in 2008 with a bachelor degree in Management and accounting from Kobayat Technical School.
During the last year of study, the applicant worked as a cashier at the Faqra Club in Lebanon. He continued in this position after graduation and until his arrival in Australia in October 2010.
He arrived in Australia in October 2010 as the holder of student visa that was valid until October 2012. He completed the studies of a Certificate IV in business, and a Diploma in business at Alphacrucis College. He studied part of a Bachelor degree in a business course at Victoria University.
On 30 October 2012, the applicant lodged an application for a subclass 457 visa sponsored by the applicant’s employer. The visa is granted on 12 December 2012 for four years.
On 1 December 2012, the applicant started living at [address], where he continued to live until he was detained by Department of Home Affairs (the Department) officers and taken to Villawood Immigration Detention Centre.
In February 2013, the applicant started working for his sponsor.
On 6 June 2014, the applicant met his alleged partner at the McDonalds Restaurant at Greenacre, NSW, his alleged partner’s place of employment at the time.
On 6 October 2014, the applicant and alleged partner began a relationship and it progressed to the stage where they began living together as a couple from 1 February 2016. They continue to be in a relationship but have been living separately due to the applicant’s detention since 18 July 2018.
On 19 October 2015, the applicant lodged an application for a permanent visa under the employer nomination scheme (ENS application). That application was accompanied by the relevant nomination by the applicant’s employer.
On 12 December 2016, the applicant’s 457 visa expired.
On 13 December 2016, the applicant’s Bridging Visa A which was granted pursuant to his ENS application came into effect.
On 2 October 2017, the ENS nomination in connection with his ENS application was refused. The applicant also received an invitation from the Department to comment on the pending ENS visa application. The Department advised in that correspondence that due to the nomination refusal the pending ENS visa application was not likely to succeed.
On 16 October 2017, the applicant’s employer lodged an application for review of the ENS nomination refusal with the Administrative Appeals Tribunal (the Tribunal).
At the same time the applicant instructed his migration agent at the time (former agent) who was assisting him with the ENS application to forward all correspondence that the former agent received from the Department in relation to the applicant’s pending ENS visa applications.
On 2 November 2017, the ENS application was refused and the former agent forwarded the Department’s notification email of the refusal to the applicant. The applicant maintains that he has not received that email communication.
On 20 November 2017, an exchange of emails between the applicant and the former agent:
(a)Applicant: “Salam Nazim, if you get anything about my file could u please forward to me thank u”
(b)Agent: “Hi Walid Which file are you talking about?”
(c)Applicant: “nothing specific after the last rejection of the nomination thanks, if they do send anything thanks”
(d)Agent: “Other than refusal decision, they wouldn’t normally send anything after that.”
On 18 July 2018, the Department attended the applicant’s home. He was interviewed and it was then that he learnt that he had been unlawful since 1 December 2017 and that the ENS application was refused on 2 November 2017. He was also charged by the police for drug possession offences and ordered to appear in court in relation to those offences.
On 27 July 2018, the applicant lodged a valid application for a partner visa sponsored by his alleged partner.
On 22 August 2018, the Department refused the applicant a partner visa.
On 23 August 2018, the alleged partner was diagnosed with anxiety and depression. On 31 August 2018, the alleged partner was put on a mental health plan.
On 28 August 2018, the applicant attended a drug counselling session at the detention centre clinic. On the same day, the applicant lodged an application for review of the decision to refuse him a partner visa with the Tribunal.
On 22 September 2018, a relationship certificate was issued to the applicant and his alleged partner.
On 9 November 2018, the applicant’s alleged partner was diagnosed with breathing difficulty and was scheduled to have a tonsillectomy, turbinectomy and septoplasty in April 2019.
On 23 November 2018, the applicant appeared before the Migration and Refugee Division of the Tribunal in relation to the review of the Department decision to refuse him a partner visa.
On 4 December 2018, the Tribunal remitted the partner visa application to the Department for reconsideration on the basis that compelling reasons were established by the applicant’s alleged partner for the waiver of the Schedule 3 criteria, which would otherwise have required the applicant to go offshore for the lodgement of the partner visa application.
On 12 December 2018, the applicant lodged an application for Bridging Visa E.
On 20 December 2018, the applicant received a notice of intention to refuse the Bridging Visa E on the basis that the applicant does not pass the character test.
APPLICANTS CONTENTIONS
Based upon the facts contended by the applicant which are set out above, the applicant claims that he became a non-citizen because he never received notification that his application for a permanent visa under the employer nomination scheme was refused on 2 November 2017. The applicant claims that such is evident from his correspondence to his migration agent on 20 November 2017 when he made enquiries concerning his application.
The applicant claims that such circumstances resulting from an honest mistake rather than a deliberate intention to disobey the law.
When the applicant was apprehended at his premises on 18 July 2018 during the execution of a Federal Search Warrant by Australian Border Patrol officers, 38 vials of prescribed restricted substances and prohibited drugs, including Drastanolone (steroids) and four x 10 ML vials of testosterone and Methandrostenolone were found in his possession. The applicant stated, when apprehended, that he was unaware of steroid use and possession being illegal in Australia prior to his detention on 18 July 2018 and states that he was “shocked” when he was so advised by the arresting officers. The applicant stated that the possession of such drugs resulted from his desire to improve his physical appearance.
The applicant appeared before the Local Court at Fairfield on 29 October 2018. On that date he pleaded guilty to 2 charges of possessing a prohibited drug and one charge of possess/attempt to, prescribe restricted substance. The evidence does not disclose the penalty that was imposed.
The applicant appealed the severity of his sentence to the District Court of New South Wales. At a hearing of the appeal at Parramatta District Court on 12 November 2018 the appeal on severity was upheld. The applicant was ordered to enter into a Conditional Release Order for a period of 10 months, the conditions being that he must not commit any offence and appear before the court if he was called upon to do so during the terms of such order. The actual order was as follows:
“You are convicted and directed to enter into a Conditional Release Order for 10 Months pursuant to Section 9 (1) (a) of the Crimes (Sentencing Procedure) Act (NSW) 1999 to commence on 29 October 2018”.
The applicant submits that the penalty imposed demonstrated that the presiding judge did not consider that the applicant was a risk to the community.
The applicant claims to be in a same sex relationship. A Relationship Certificate issued under the Births Deaths and Marriages Registration Act 1995 (NSW) is relied upon to verify such relationship with the applicant’s alleged partner. Whilst they do not reside together constantly due to family pressures from the alleged partner’s family, and the desire to conceal such relationship from such family, the applicant’s alleged partner and the applicant hold a joint bank account which was opened on 1 June 2018. Further, the applicant’s superannuation fund records the alleged partner as the beneficiary as to 100%. Such nomination was made on 13 August 2018.
The applicant states that his alleged partner suffers from anxiety and depression and relies upon the applicant for support and the applicant relies upon his alleged partner for support. The applicant states that his alleged partner, as at November 2018, was undergoing psychological assistance under a mental health plan as a result of the fact that the applicant was in detention. Further, his alleged partner was due to have surgery for a tonsillectomy, turbinectomy and septoplasty during this year and required the applicant’s support.
The applicant claims that he and his alleged partner identify as a couple and are planning to purchase a new home together. They have exchange gifts such as clothing, watches, electronics and pets. The applicant states that homosexual relationships are not permitted in Lebanon. If he were returned to that country, he would suffer persecution.
RESPONDENT’S FACTS
As to the applicant surprise that possession of a prohibited drugs found in his possession when he was apprehended was illegal, the respondent states that before a previous hearing before the Tribunal, the applicant gave evidence which suggested to the contrary, confirming that he became aware that he was breaking the law prior to his arrest. The Tribunal noted at [17]:
“The applicant said that initially he did not know it was illegal to possess steroids. He bought these from a friend of a friend. Later on he knew that they were illegal but he had them and wanted to finish them”.
In respect of the claim that the applicant was unaware of his unlawful status prior to being detained on 18 July 2018, the respondent states the applicant did not take adequate steps to monitor the progress of his ENS visa application to ensure his lawful status in Australia; that it was his responsibility to do so; that it would not have been difficult for him to make inquiries of the Department or instruct his migration agent to make contact with the Department. Further, the respondent claims that it is highly likely that the applicant was in fact aware in November 2017 that his application for an employer sponsored visa was refused. Such submission is based upon the fact that in that same month, he left the employ of his sponsor.
As evidence of the applicant’s disregard for Australian law, the respondent refers to the applicant’s driving record and states that between 17 August 2012 and 20 July 2017 the applicant had exceeded the speed limit on 16 occasions, disobeyed traffic lights on one occasion and has had one offence for using a mobile phone whilst driving.
As to the possibility of harm due to persecution or substantial discrimination based on sexual orientation, the respondent states there is little evidence of probative value to support a finding that the applicant would face a real risk of serious or significant harm in Lebanon beyond his untested statements.
The respondent states that the protection of the Australian community from criminal or other serious conduct is a primary consideration and that by virtue of the possession of drugs, the evidence concerning the applicant’s driving offences taken together demonstrate that the applicant has shown a disregard for Australian law.
OBSERVATIONS
These proceedings have been preceded by several prior applications.
By a decision made by an officer on 22 August 2018, the applicant made applications for a Partner (Temporary) (Class UK) (Subclass 820) Visa and a Partner (Residence) (Class BS) (Subclass 801) Visa. The immigration record recorded the following Visa applications:
You lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 27 July 2018 on the grounds of being in a partner relationship with an Australian citizen, Mohsen BILAL, who lodged a sponsorship in support of the application.
Departmental records indicate your immigration history is as follows;
· On 11 September 2010, you first arrived in Australia on a Student (subclass 572) visa which ceased on 3 October 2012.
· On 30 October 2012, you lodged a Temporary Work (Skilled) (subclass 457) visa application. On 12 December 2012, you were granted a 457 visa, which ceased on 12 December 2016.
· On 19 October 2015, you lodged an Employer Nomination Scheme (ENS) (subclass 186) visa application, which was refused on 2 November 2017. The Bridging A (subclass 010) visa granted in association with the application ceased on 30 November 2017.
· You remained unlawfully in Australia from 1 December 2017. On 18 July 2018, you were located and detained in the Villawood Immigration Detention Centre (VIDC).
· On 27 July 2018, you lodged this Partner application. Your application for an associated Bridging visa was refused on 31 July 2018 and the refusal decision was affirmed by the Administrative Appeals Tribunal (AAT) on 9 August 2018.
· You currently remain unlawful and detained in VIDC since 18 July 2018.
The applications were refused on 22 August 2018 upon the ground that the applicant failed to meet the legal requirements of clause 801.221 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), particularly the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). The officer stated that to meet the requirements of such subclauses, the applicant must either hold a Subclass 820 Visa, or have held a Subclass 820 Visa that ceased on notification of the decision to refuse a Subclass 801 Visa.
On 3 December 2018 the Tribunal remitted the applicant’s application for a Partner (Temporary) (Class UK) Visa with a direction that the applicant met the following criteria for a Subclass 820 (Partner) Visa: clause 820.211 (2) (d) (ii) of Schedule 2 to the Regulations.
The applicant applied for a bridging visa which was refused. On 12 December 2018 the applicant, who was then in detention, made a second application for a Bridging E (Class WE) visa. Such visa application was refused on 14 February 2019, from which decision this application to the Tribunal is made.
THE CHARACTER TEST
The character test is set out in section 501 (6) of the act and includes matters relevant to the current application. The applicant does not have a substantial criminal record as defined in section 501 (7). However, relevantly pursuant to section 501 (6) a person does not pass the character test if, having regard to (i) the person’s past and present criminal conduct or; (ii) the person’s past and present general conduct; the person is not of good character” (see section 501 (6) (c)); or there is a risk that the person would engage in criminal conduct Australia (see section 501 (6) (d)).
The applicant submits that there is no evidence that the applicant was engaging in the trafficking of drugs. Further, the sentencing judge, by the sentence imposed upon the applicant for the possession of prohibited substances, clearly considered that the offence was, on the scale of seriousness, low. In respect of a suspended sentence, Wood CJ at CDL in R v Laws [2000] NSWSC 885; (2000) 116 A Crim R 70, at 79 stated the purpose of a suspended sentence as being:
“to convey the seriousness of the offence and the consequences of re-offending to the offender, while also providing him or her with an opportunity to avoid the consequences by displaying good behaviour and by not repeating the relevant breach of the law or any similar breach of the law”.
The applicant relies upon the fact that he has resided in Australia for nine years, during which he has had no other convictions for any criminal offence. The respondent draws attention to the driving record as being indicative of a disregard for the law, and refers the Tribunal to the decision in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [45] where the Tribunal said:
“The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.”
In answer to such decision, the applicant refers to the fact that the circumstances in Bartlett were different from those currently before the Tribunal in that the applicant in that matter had been engaged in other serious conduct.
DIRECTION 79
Direction 79, made pursuant to section 499 of the act, provides guidance to decision-makers in assessing the exercise of powers under section 501 of the act. Direction 79 does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (2014) 227 FCR 562 per Perry J at [80]. See also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82]. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”
Under the heading “Principles”, it is stated in clause 6.3 (1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:
“Being able to come to or remain in Australia is a privilege Australia confers on non- citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.”
The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable.”
The Principles also state that Australia has a low tolerance of any “criminal or other serious conduct.” And a low tolerance of any “criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”
It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part B of the Direction. Pursuant to clause 11.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
The Primary Considerations in Part B of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 11.1 (1) (a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see clause 11.1.1 (1) (h).Clause 11.3 makes provision for consideration of the expectations of the Australian Community. Clause 11.3 (1) provides inter alia:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.”
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Risk to the Australian Community
The Direction requires decision-makers to have regard to the nature of the harm to individuals or the Australian community should the non-Citizen engage in further criminal or other serious conduct and the likelihood of the applicant engaging in such conduct. It should be remembered, as was stated in DND and Minister for Home Affairs (Migration) [2018] AATA 2716 at [82] that clause 13.3 of the direction:
“.. points to the likelihood, but it does not dictate an inflexible conclusion, that community expectation requires a non-revocation decision. Community expectation will depend upon consideration of the “nature and character” of the offences”.
In the decision under review, the delegate for the Minister found that the consumption of the illegal substances found in the applicant's possession could make him aggressive and become a risk to the community. The Tribunal notes such finding but finds that there are other considerations, as set out hereunder which are directly pertinent to the application.
The Tribunal notes that on two occasions, friends of the applicant attempted to visit him whilst he was in detention. The presence of drugs was detected on such persons. Whether drug consumption by such persons had occurred is inconclusive.
Best Interests of Minor Children
The applicant has no children in Australia.
The Expectations of the Australian Community
In considering the expectations of the Australian Community, it should be observed, as was stated by McCabe DP in Labi And Minister for Immigration and Border Protection (Migration) [2016] AATA 316 at [60], that:
“The direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgement. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate”.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J at [76], in reference to the equivalent provisions to clause 13.3 of Direction 79 said:
“In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian communities “expectations” are defined only in one particular way: namely: that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature that is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the direction that.”
While the cases above deal with Part C of Direction 79 as it applies to considering whether a mandatory cancellation should be revoked, the close to identical language used by the Minister in Part B and Part C would indicate that the general observations concerning risks to the Australian Community and the expectations of the Australian Community are similarly applicable when taking into account the considerations in Part B for visa refusals.
The Tribunal must determine and weigh up all the circumstances both for and against the application: as referred to by North J in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91], no legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved. Similarly, Buchanan J in MBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) to 20 FCR 1, a visa holder is entitled have their application assessed with proper regard to the merits of their particular circumstances. Whilst the applicant in the present application does not have a visa, the Tribunal recognises that he has resided lawfully in this country for period of nine years.
MATTERS RELIED UPON BY THE RESPONDENT
The Respondent has raised several issues which must be considered by the Tribunal, as follows:
Absence of notification of the refusal:
The applicant acknowledges that he received an email from his migration agent on 2 October 2017 informing him that his application for an employer sponsored visa had been refused. The email letter from his migration agent stated, inter alia:
“We regret to advise that the 186 nomination has now been refused as per the attached notification.
As the nomination was refused, you have been issued with a natural justice letter, which gives you two (2) broad options, as follows:
-to either withdraw the Visa application,
-or to keep going with it, however, the Visa application will be refused and you then have the right to appeal it to the AAT.”
The letter continued, stating that if the second option was to be followed, the applicant would need to lodge review applications and set out the costs and application fees. The letter stated:
“it is our estimation that the review application can take between 1 to 2 years to be finalised. If you do proceed with an app appeal, you maintain the same bridging Visa you hold now.
However, it is our view that the chances of a successful review are limited, given the contradictory statements that were made during the site interview.”
Finding
The Tribunal is unable to conclude whether the applicant received notification of the refusal of the employer sponsored visa. There is some evidence of enquiries being made as to the status of his application to his migration agent after November 2017, but the email exchange between the migration agent and the applicant do not directly address the question whether the clear indication from the migration agent was one of puzzlement by the continued enquiry by the applicant. The migration agent stated that he did not expect that there would be any further communication.
The respondent states that the applicant was under a duty to then make inquiries as to his status but he took no steps to do so. In response, the applicant states that because his previous visa applications are taken up to 9 months to process, he did not think it unusual for there to be a long delay before the visa determination was made.
For the above reasons the Tribunal is not able to conclude that the applicant did have specific knowledge that his application had been refused.
Inconsistent statements
The applicant has made several inconsistent statements as follows:
(a) Awareness of Illegality of Drug Possession
The Applicant said, in a statement dated eighth of January 2019 he was “shocked” to find that the drugs found in his possession when he was arrested by Border Force on 18 July 2018 were illegal. He stated:
“I was shocked. Shocked because I couldn’t believe that I had broken the law. I immediately felt guilt and remorse for my actions. This is in no way an excuse, but being self-conscious I thought I was helping myself by taking steroids not realising that not only was illegal, but I was also hurting my own body by taking this.”
However, the applicant concedes that he knew that they were illegal at least five months before his apprehension in July 2018 as is evident from a previous Tribunal hearing. Further, the drugs were concealed in a television set. The applicant acknowledged that the purchaser drugs through “a friend of a friend”. The Tribunal can clearly draw the inference that he purchased such drugs in this way, rather than attempting to purchase them legally, because he well knew that it was illegal to possess such drugs at the time he purchased them.
(b) Relationship Status
The applicant claims to be in a relationship, as set out in a statement made on 8 January 2019. The applicant states that on 1 February 2016 after meeting such person at a McDonald’s restaurant, “we decided to start a formal de facto relationship”.
Such statement is impossible to reconcile the statement made on 18 July 2018 to Australian Border Force when he was asked: “What is your marital status?” The applicant indicated that he was single, although there was a box which he could have marked showing that he was “de facto”.
In the same form, when it was asked whether there were any reasons why he could not return to his home country, he answered “yes” and then wrote the following information on the form:
“I’m gay. It’s forbidden in Lebanon. I’ve been told to apply for asylum. The trick is not to travel for three years”.
Had the applicant been in a genuine relationship, the Tribunal would have expected the applicant to mark the box recording his de facto status. The applicant expressly stated, as set out above, that the relationship commenced on 1 February 2016. Accordingly the Tribunal considers that the Applicant’s answers are unreliable and the Tribunal gives little weight to the assertion of the de facto relationship.
(c) Occupation
The applicant stated that his occupation was “contract supervisor” whilst he was working at his sponsor’s business. However his income tax returns stated that his occupation was “shop assistant”.
In the Notice of Decision of nomination refusal notice for Employer Nomination dated 2 October 2017, reasons were provided for the refusal of the nomination of the applicant by. The reason stated that during an interview with the applicant by departmental officers at the business premises of the nominator, the applicant said that he joined the sponsor in 2012 as a Contract Administrator; that his duties were looking after safety issues, preparing staff rosters, working inside and outside, cleaning fish, serving and it busy, sometimes cooking. He also stated that he did the banking. He stated that he worked 50 to 56 hours per week. However the applicant’s tax return includes a statement that his occupation was “shop assistant general”. The applicant agreed that he was a shop assistant but performed other duties.
On 9 November 2016 the applicant was provided an opportunity to comment upon the discrepancy. He responded saying that he was “caught off guard”, was tired and stressed and provided further details of his duties.
The delegate considered that the information remained adverse to the applicant: that taking into account the applicant may have been part or stressed, the duties of a contract administrator had no relevance to the duties being performed by the applicant.
When questioned during the Tribunal hearing, the applicant stated that his accountant made an error in his description of the applicants work; and that he informed the accountant of such error. There is no independent evidence to verify such claims.
(d) Driving history
The driving record of the applicant demonstrates that he committed speeding offences frequently. For example, on 16 July 2014 he exceeded the speed limit on two occasions. On 25 March 2015 he committed another speeding offence and three weeks later on 10 April 2015 he committed another speeding offence. 12 months later on 14 April 2016 another speeding offence occurred, and on 17 April 2016 there was another speeding offence. Two months later, on 4 June 2016 a further speeding offence was committed and further offences took place on 16 June 2016, 18 June 2016, 19 February 2017, 2 March 2017, 13 March 2017, 14 March 2017, 25 July 2017 and 21 March 2018 whilst he was driving on a learner’s permit.
Finding
The provision of answers which were deliberately misleading in relation to his knowledge of the illegality of drugs; the misstatements concerning his occupation; the attempted concealment of the drugs in his possession and the conflicting statements concerning his alleged relationship are serious matters. The information was provided to officials in the course of carrying out their statutory duties.
The driving record of the applicant demonstrates that he has a clear disregard for the Australian law. Further, the possession of prohibited substances is a criminal act for which the applicant has pleaded guilty. The attempted concealment of the drugs demonstrates that the applicant well knew of their illegal nature.
In the circumstances, the community would expect that the applicant would not be granted a visa.
OTHER CONSIDERATIONS
Non-refoulment
The Tribunal notes the applicant’s claim that he will suffer persecution if returned to Lebanon. The Tribunal also notes that articles and publications that have been presented speak generally of unsettled conditions in the country. There appears to be however no statements or evidence to the effect that homosexuality would be the subject of persecution.
The Tribunal notes the finding in Aciek and Minister for Home Affairs [2018] AATA 2755 at [104], namely that it would be undesirable to enter upon any further consideration of such issue given that “there is very little evidentiary basis to permit a fully informed assessment”. The Tribunal also notes the observations of Robertson J in Uolilo v Minister for Home Affairs [2019] FCA 336. There is no evidence before the Tribunal which indicates that the applicant will suffer harm if he were returned to Lebanon.
Impact on family members
There is virtually no evidence of any adverse impact which would be suffered if the applicant would not be granted a visa. The applicant appears to have relatives living in Lebanon.
Impact on victims
There is no evidence of any adverse impact on any person if the applicant were removed from Australia.
Impact on Australian business interests
There is no evidence of any adverse impact on any Australian business interests if the applicant were removed from Australia.
FINDINGS
The Tribunal finds that the applicant does not pass the character test, as defined, because the applicant’s past and present general conduct demonstrates that he is not a good character. Such finding is cumulatively based upon the inconsistency in the answers which he has provided, the conviction for possession of illegal substances, and the applicant’s driving record which demonstrates a disregard for the laws of Australia. The Tribunal does not adopt the findings of the decision appealed from, namely that the risk of violence from drug taking disqualifies the applicant. Rather, his disqualification results from the matters dealt with above relating to his character.
In light of this finding, s 501 (1) of the act is enlivened, giving the decision maker the discretion to refuse the applicant’s visa application for a Bridging E (Class WE) Visa. Taking into account the Primary and Other Considerations set out in Part B of Direction 79, the Tribunal finds that on balance, these factors weigh in favour of the applicant’s visa application being refused despite the length of time the Applicant has remained in Australia.
The Tribunal finds that the decision under review should be affirmed.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
....................................[sgd]....................................
Associate
Dated: 10 May 2019
Date(s) of hearing: 23 April 2019 Date final submissions received: 15 April 2019 Counsel for the Applicant: Ahmad Moutasallem Advocate for the Applicant: Albert Kalouche Solicitors for the Applicant: CK Migration Advocate for the Respondent: Claire Campbell Solicitors for the Respondent: MinterEllison
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