Maksoud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1367

Maksoud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1367 (18 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1040
Re:Walid Maksoud
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal: The Hon. John Pascoe AC CVO, Deputy President
Date:18 May 2020
Place:Sydney

The Tribunal sets aside the decision made by the delegate dated 14 February 2019 and in substitution decides not to refuse to grant the Applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958 (Cth)
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – refusal of Bridging E (Class WE) Visa – failure to pass the character test – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the applicant engaging in future criminal conduct – whether the applicant poses a risk of harm to the Australian community – Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Immigration and Ethnic Affairs v Wendy Susan Baker (1997) FCR 187
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 224
R v Ingrassia (1997) 41 NSWLR 447
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
18 May 2020
BACKGROUND

The applicant is a 31-year-old citizen of Lebanon. He arrived in Australia on 11 September 2010 as the holder of a Student (Subclass TU-572) visa.
On 19 October 2015, the applicant lodged an Employer Nomination Scheme (subclass 186) visa (‘ENS visa’) with Chester Hill Fish Market Pty Ltd as his nominator. The applicant was granted an associated bridging visa.
On 2 October 2017 and 2 November 2017, the nomination and ENS visa applications were refused. The applicant's bridging visa ceased on 30 November 2017.
On 18 July 2018, Australian Border Patrol officers attended the applicant's premises to execute a Federal Search Warrant and to interview him in relation to his unlawful non-citizen status. Whilst at the premises, officers located steroids in a draw of the applicant's television unit. He was arrested and taken to Fairfield Police Station.
On the same day, the applicant was released from criminal custody and taken to Villawood Immigration Detention Centre (‘Villawood’) where he currently resides.
On 27 July 2018, the applicant lodged applications for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (‘the partner visas’), on the basis of his de facto relationship with an Australian citizen, Mr Mohsen Bilal, who lodged sponsorship in support of the application.
On 31 July 2018 and 9 October 2018, the applicant's associated bridging visas were refused on the basis that he could not be expected to abide by the conditions of the visas.
On 22 August 2018, the applicant's partner visas were refused on the basis that he failed to satisfy Schedule 3 Criterion 3001 of the Migration Regulations 1994 (‘the Regulations’). The applicant had ceased to hold a substantive visa more than 28 days prior to lodging his applications, and the delegate was not satisfied compelling reasons existed such that the criterion was not required to be applied.
The applicant sought review of the decision, and on 3 December 2018 the applications were remitted by the Migration & Refugee Division of the Tribunal with a direction that there were compelling reasons not to apply the Schedule 3 criterion, which would otherwise have required the applicant to go offshore to lodge the applications. The Tribunal found that the applicant would face risks to his safety if he were returned to Lebanon to apply, being a homosexual man from a conservative Muslim area.
On 12 November 2018, the applicant was found guilty by the Parramatta District Court of possess/attempt to, prescribed restricted substance and two counts of possess prohibited drug, for which he was sentenced to a 10 months conditional release order without conviction. The offences arose as a result of the search of the applicant's premises on 18 July 2018.
On 12 December 2018, the applicant lodged an application for a bridging visa, seeking to reside in the community whilst awaiting finalisation of his partner visa applications.
On 20 December 2018, the applicant was issued with a notice advising of the intention to consider refusal of the visa under subsection 501(1) of the Act. The applicant was provided with an opportunity to comment or provide information on whether he passed the character test, and on whether the decision-maker should exercise his or her discretion to refuse his application. On 17 January 2019, the applicant, through his representative, responded to the invitation to comment with written submissions and supporting material.
On 5 February 2019, the applicant was issued with a further notice inviting him to comment on new information, namely his Australian Criminal Intelligence Commission Check Result Report dated 5 February 2019. On 13 February 2019, the applicant provided submissions in response.
On 18 February 2019, a delegate decided to refuse the visa application. The delegate found that the applicant did not pass the character test by virtue of subparagraph 501(6)(d)(i) of the Act, noting that there was a risk the applicant would engage in criminal conduct in Australia if allowed to remain in Australia. The delegate further found that the decision to exercise the discretion in subsection 501(1) to refuse the visa was the preferable decision, having regard to Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the previous Direction).
On 26 February 2019, an Application for Review was lodged in this Tribunal.
THE LAW
The character test is defined in section 501(6) of the Migration Act 1958 (Cth) (‘the Act’). Relevant to this matter, a person does not pass the character test if:
…
(d) in the event the person would be allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia.
Section 501(1) provides that the Minister may refuse to grant an individual’s visa if they fail to satisfy the Minister that they pass this character test. If the Tribunal determines that the applicant does not pass the character test defined in Section 501(1), the next consideration is whether, with reference to Direction No 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa (‘the Direction’), the Tribunal should exercise its discretion to set aside the delegate’s decision to refuse the applicant’s visa.
The Direction provides that this decision is to be approached within the framework of the principles outlined in paragraph 6.3 of the Direction.
The primary considerations in Part B of the Direction in deciding whether to refuse the non-citizen's visa are the:
a.protection of the Australian community from criminal and other serious conduct;
b.the best interests of minor children in Australia; and
c.expectations of the Australian Community.
The decision-maker must also take into account other considerations insofar as they are relevant to the matter, such as the impact on victims, family members and non-refoulement obligations.
THE ISSUES
The issues for the Tribunal to decide are as follows:
a.whether the applicant passes the character test as defined in section 501(6).
b.If the applicant does not pass the character test, whether the Tribunal should exercise its discretion in section 501(1) to refuse the applicant’s Bridging Visa having regard to the considerations prescribed by Direction No 79 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA’ (‘the Direction’).
THE EVIDENCE
The applicant’s evidence
The applicant gave evidence that he arrived in Australia in September 2010 on a student visa. He studied accountancy and attained the level of certificate three, certificate for diploma, and studied a Bachelor of Accounting.
Through completing work experience at Chester Hill Fish Markets whilst he was studying, the applicant was offered a position as a contract administrator managing contracts, problem-solving and undertaking a range of other duties for the company. The Chester Hill Fish Market was his sponsor for his ENS visa.
In 2014, the applicant met his partner, Mr Mohsen Bilal. The applicant said that they had spent time together regularly since dating, and in 2016 they officially became a couple.
The applicant gave evidence that they had to be very careful about revealing their relationship to family members, as both the applicant’s and Mr Bilal’s family were very conservative and had strong religious beliefs as members of the Muslim faith. The applicant said that his family would likely disown him if they knew of his sexuality. As such, Mr Bilal and the applicant’s families believed they were just friends.
The applicant gave evidence that Mr Bilal and himself share finances and have a shared bank account. He said that they identify as a couple outwardly in Australia and plan to buy a house, have a family and ultimately share a future together. Mr Bilal has supported the applicant financially and emotionally whilst he has been held in Villawood.
The applicant gave evidence that he had been uncomfortable with his sexuality for a long time, particularly growing up in a conservative part of Lebanon where homosexuality was not tolerated both culturally or religiously. When cross-examined on his sexuality, the applicant spoke about his lack of feelings for women compared to men, the innate feeling he had about his sexuality and who he is and loves and the difficulties he faced in having to hide this from his family.
Whilst in Villawood the applicant has been seeing a psychologist, which he said has been very helpful in assisting him to come to grips with who he is, his previous self-confidence and body issues and in improving himself generally. The applicant was diagnosed with depression by Dr Wilson Munro and is continuing treatment. He said that he has realised that his problems around body image and the underlying reasons for why he used steroids are “all in his head”.
The applicant gave evidence that he used steroids because he was unhappy with his appearance and he didn’t feel attractive. He had wanted to become more muscular and less “skinny”. He was also regularly visiting the gym in order to build more muscle.
On 18 July 2018, Border Force officers came to the applicant’s house because he had overstayed his visa. The applicant gave evidence that his overstay was not deliberate and was as a result of his belief that his visa application was still pending as his migration matter was being handled by his previous legal representative, who was authorised to receive correspondence in relation to his migration matter.
During their raid on the applicant’s house, Border Force officials found bottles of steroids in a television unit drawer. The applicant said he was aware that the items were illegal in Australia but did not think it was a serious offence, as it was personal use and he was not aware of the exact provisions of the law.
The applicant has not had any previous involvement with the police and said that he had never previously been arrested or charged, although he did have a number of fines for red light driving offences.
The applicant gave evidence that he was very upset and remorseful about using steroids, both because he felt that he had betrayed the Australian community and his partner. He understood the great privilege of being able to live in Australia. He expressed his concern about the effect his behaviour has had on the health and well-being of his partner.
He said he had found it hard living in Villawood, but that it had provided a lot of time for reflection and self-improvement. I note that the applicant has paid a heavy price for his actions and, despite not receiving a conviction or jail time from the District Court of New South Wales, he has served almost two years in Villawood Immigration Detention Centre since being detained on 18 July 2018.
The applicant was concerned about his health if he remains in Villawood, particularly given the current impact of the COVID-19 pandemic. He suffers from asthma which places him in a higher risk category, and it is not possible to self-isolate at Villawood given the communal eating and living areas.
The applicant gave evidence that his partner visited him regularly whilst in Villawood, usually at least three times a week. He gave evidence too that he has never used prohibited drugs, including steroids, since the Border Force raid, and said that he is regularly tested for substance use in the immigration detention and has never returned a positive result.
The applicant gave evidence that he is ashamed of his actions and will never take steroids again, both because he now understands the consequences of his actions and also because he is much more comfortable with himself. He also does not want to do anything to further distress his partner.
The applicant said that he hopes to continue to live in Australia, to build a life with his partner and to be a productive member of the Australian community. He did not intend to drive again until he completes a driver education program. His vehicle was currently unregistered.
Under cross-examination the applicant gave evidence that he has worked hard to perfect his English because he wanted to be part of the Australian community. He said that he had enjoyed his work at the Chester Hill Fish Markets and spoke of the various tasks he performed.
When questioned about his relationship with Mr Bilal, the applicant gave evidence as to how they had moved in together, but also how they have had to present themselves as ‘friends’ when the applicant’s mother visited him from Lebanon.
The respondent’s representative questioned the applicant extensively about the police raid and also posed many questions about why the applicant did not disclose to the police or in official documentation that he was homosexual. The applicant’s answers were always consistent and related to his concerns about his family, the difficulties he experienced being open about his sexuality in the past and his difficulty in coming to terms with his sexuality.
The applicant nominated Mr Bilal as his partner for the purposes of his superannuation policy in 2018. The applicant denied any suggestion that he had made the change for the purposes of the partner visa. The application for the partner visa was filed on 27 July 2018.
When questioned about the future, the applicant reinforced his intention of not driving until he had completed the driving instruction course, to continue to work on his mental and physical health and to continue to build his relationship with his partner, Mr Bilal. He expressed an intention never to reoffend and said that he was very remorseful and ashamed of his past actions.
Mr Bilal’s evidence
Mr Bilal gave evidence as to how he had first met the applicant.
He also gave evidence as to his current employment in the medical field. Being of good character was important in his work as a senior technical consultant.
Mr Bilal gave evidence of the long-term nature of his relationship with the applicant whom he described as a loving and caring partner. Mr Bilal said that he visits the applicant in Villawood at least three times a week, which was consistent with the applicant’s evidence.
If the applicant is released from immigration detention Mr Bilal said that they will live together, and he will support the applicant as they will build their lives together. He would encourage the applicant to continue with his counselling and support him financially and emotionally.
Mr Bilal said that he was not aware of the applicant’s use of steroids and that he would have done everything to get him to stop it if he had been aware.
When questioned by the respondent’s representative as to why he had been refused entry to Villawood on one occasion when the machines at the centre had tested positive for drugs, Mr Bilal said he did not know why it had read a positive. He said he has never taken prohibited drugs, particularly given his position of employment. He noted that he had requested to speak to the manager of Villawood and had been informed that the machines were not always accurate and can read a false positive for a variety of reasons. Mr Bilal said that he has never been denied entry to Villawood on previous or subsequent visits as a result of this reading, and that he is aware of other people who do not use prohibited drugs who have received a false positive by the machine.
CONSIDERATION
The first question for the Tribunal to address is whether the applicant passes the character test under section 501(6) of the Act. Section 501(6) of the Act states as follows:
…
(d) in the event the person would be allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia.
The applicant’s visa was cancelled under s 501(6)(d) of the Act. Paragraph 6(2) of Annex A to Direction 79 provides guidance on the application of the character test and assessment of risk in relation to future conduct under s 501(6)(d) of the Act. Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting that there is "more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct".
It is not sufficient to find that the person has engaged in such conduct in the past; there must be a risk that the person would engage in the specified conduct in the future: Paragraph 6(3) of Annex A to Direction 79.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Wendy Susan Baker (1997) FCR 187 stated that the reference to “criminal conduct” is “not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material”.
Section 501(6)(d)(i) is not satisfied unless, in the event that the applicant were allowed to remain in Australia, there is a risk that they would engage in criminal conduct in Australia.
That test was discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 224. Her Honour drew attention to the relevant principles to be taken into account in construing the tests in s 501(6) of the Act as follows at [129]:
Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).
Further, at [130] Her Honour wrote:
In relation to s 501(6)(d), a qualitative assessment of risk is an express part of the character test itself. Each of the items in s 501(6)(d) in that sense are identified by the Parliament as potential “harm” to the Australian community.

Accordingly, the question to be asked is whether there is any risk (above a minimal or remote risk) that the applicant would engage in criminal conduct and cause harm to the Australian community.
In considering whether the applicant passes the character test, it is necessary to take into account all the circumstances of the applicant’s offending and any other issues which relate to the assessment of the risk that the applicant would further engage in criminal conduct.
The first thing to note in this regard is that as at the date of the decision which is the subject of the current review, the applicant did not have any criminal conviction. It is important that the applicant was never involved in any trouble with the police apart from driving offences, including exceeding the speed limit and one red light offence. The respondent emphasised both at the hearing and in final submissions, the seriousness of the driving offences, but failed to demonstrate any ongoing risk to the Australian community.
He has never been involved in any violence or antisocial behaviour either before or after 18 July 2018. Nor is there any evidence that the applicant has used the steroids or any illicit substance since he was charged on 18 July 2018. He has been a productive member of the Australian workforce, in a stable relationship and with close ties to family and friends.
The respondent’s representatives pointed to alleged inconsistencies in the applicant’s evidence about his duties at Chester Hill Fish Markets and raised issues around the applicant’s knowledge of his ENS visa expiration. At the hearing, the applicant gave evidence that clarified his duties whilst employed, and also explained the reasons for the expiration of the visa. I found the applicant’s evidence on these issues to be quite credible. In any event, although it may be that inconsistencies in his answers between the first and the second hearings might go to his credibility, they are not relevant to any possible risk of harm to the Australian community.
In relation to the applicant overstaying his ENS visa, the applicant gave evidence which was not successfully challenged that he had provided his address for any communication with the Department to his authorised migration agent, and that his agent had not passed on the relevant communication which could have led him to believe that the visa was not still on foot.
As a result, the subsequent raid by Border Force officers brought the applicant to the attention of the New South Wales police, where they found files of steroids which the applicant had been using in order to gain weight and build muscle tone as part of his desire to look more attractive both to himself and to others. I accept the applicant’s evidence that he had low self-esteem, which is consistent with his evidence as to his doubts about his family and society’s acceptance of his sexuality, having grown up in a very conservative Muslim family in a country where homosexuality is illegal.
I accept the applicant’s evidence that he felt very remorseful and ashamed for having used steroids. In addition, it was clear from his evidence that he is now fully aware of the extremely serious consequences that would flow if he were to ever reoffend again in a similar manner.
The applicant has taken proactive steps to properly understand his offending and ensure that he does not reoffend. He has been seeing a psychologist in Villawood and I accept that he has found this very beneficial both in coming to accept himself and accepting responsibility for his own mental health. The applicant has also been treated on a weekly basis by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, which has also been of benefit.
The applicant gave a very full disclosure of his history and the nature of his relationship with Mr Bilal. His partner gave evidence that he was not aware that the applicant had used steroids, that the applicant taking the steroids did not have any effect on his mood or behaviour, but that if he had have known he would have made every effort to stop the applicant. I accept that the applicant and Mr Bilal have a close and loving relationship, are fully supportive of each other and wish to build their life together as a couple.
The applicant’s distress at not being able to support Mr Bilal when he underwent recent surgery because of his detention in Villawood was clear and, in my view, completely genuine. Mr Bilal has visited the applicant in detention on a regular basis since 2018 and gave evidence of his ongoing support, including financial support.
Both Mr Bilal and the applicant gave consistent evidence as to the reasons why they had been very careful in not disclosing their relationship to their respective families. I found their explanation completely credible, particularly given the cultural and religious barriers they both faced with their families accepting their sexuality. In other regards, they behaved as any other de facto couple would do, with shared household duties, shared finances and many shared activities.
I found both the applicant and Mr Bilal to be honest and credible witnesses. Despite very lengthy cross-examination by the respondent’s representative, there were no inconsistencies in the evidence presented.
The respondent argued that the steps taken by the Applicant to publicly recognise Mr Bilal as his partner were self-serving and only took place after the Applicant applied for a partner visa. However, even if that proposition is true it does not show that the relationship was not genuine, and there are significant factors which demonstrate it is a genuine long-term relation.
The circumstances under which the applicant was charged included a 6:00AM raid of his house by Border Force officers and being taken in a shocked state to the police station, convicted and later successful in his appeal to the District Court.
The effect of the decision of the District Court does not appear to have been understood by the Delegate. The applicant was not convicted by the District Court of any offences. The District Court allowed the applicant’s appeal and set-aside the convictions in the Local Court.
The decision of the District Court was that the applicant was found guilty but, because of the nature of the offence, did not proceed to conviction and directed the applicant to enter into a conditional release order pursuant to Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. Section 9 relevantly says:
(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if:
a.the court proceeds to conviction, or
b.the court does not proceed to conviction but makes an order under section 10 (1) (b).
The relevance of those orders of the District Court are reinforced by the provisions of Section 9(2), which set out the factors a court must consider when determining whether or not to make such an order. The section provides as follows:
In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
a. the person's character, antecedents, age, health and mental condition
b. the trivial nature of the offence,
c. the extenuating circumstances in which the offence was committed,
d. any other matter that the court thinks proper to consider.
I placed considerable weight on the nature of the orders by the District Court. The scope for making such orders decreases, for instance, whether the District Court perceived general deterrence necessary due to the likelihood of the applicant’s recidivism. These provisions provide a means for ensuring that justice is served where there are such extenuating circumstances or the matter is so trivial that a conviction does not seem warranted, even though there may be a breach of the law. Clearly the District Court did not think that the applicant posed a risk to the community. The importance of this type of provision was enunciated clearly by Chief Justice Gleeson in R v Ingrassia (1997) 41 NSWLR 447 where he said at [449]:
The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice".
This leaves only the matter of the applicant’s driving record, namely a number of offences such as running a red light, exceeding the speed limit and one count of using a mobile phone whilst driving. In this regard, I note the applicant gave evidence that he does not propose to drive until he has completed a driving test, that he does not currently have a car which is registered and his expressions of remorse in relation to these offences. Although these offences can be seen as showing disrespect for the law and could possibly have posed some risk to the public, there is no evidence that they were of a particularly serious nature, directly endangered members of the public or would occur again. I accept the applicant’s remorse and his intention to improve his driving capacity before driving again.
In light of all of the evidence and in particular the decision of Judge Bennet in the District Court of New South Wales, the applicant’s evidence supported by his partner Mr Bilal and which was not successfully challenged, his clear expressions and genuine remorse, the support he receives from his family and his partner, Mr Bilal, and the fact that he will continue to undertake counselling in relation to his feelings of depression and self-worth, together with considering the provisions of the Act and the Direction, I find that the applicant poses extremely minimal if any risk to the Australian community.
I also do not accept the respondent’s argument that somehow the applicant’s strong desire to be an Australian citizen should be regarded unfavourably. Rather, it is in my opinion a positive factor that a potential citizen really wants to be Australian and is prepared to make an effort, such as by learning to speak English proficiently and wanting strong and durable ties to Australia as was clearly demonstrated in his evidence.
The respondent argued that I should place considerable weight on an earlier judgement of the Tribunal and the evidence provided on that occasion. My obligation is not to reach the same conclusion as a previous Tribunal but rather to weigh the evidence before me, which included the previous proceedings before the Tribunal, and to reach an independent conclusion as to the correct and preferable decision on the whole of the evidence available to me. The balance of the evidence before me weighed unequivocally in favour of the decision I have made.
DECISION
The Tribunal sets aside the decision made by the delegate of the respondent dated 14 February 2019 and in substitution decides not to refuse to grant the applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

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Dated: 18 May 2020

Date of hearing:
1 May 2020

Counsel for the applicant: Mr Paul Bodisco

Representative for the respondent: Mr Bromley Hornsby

Date of hearing:	1 May 2020
Counsel for the applicant:	Mr Paul Bodisco
Representative for the respondent:	Mr Bromley Hornsby