Maksoud (Migration)

[2018] AATA 4833

Maksoud (Migration) [2018] AATA 4833 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Walid Maksoud

CASE NUMBER:  1829792

DIBP REFERENCE(S):  BCC2018/2826104

MEMBER:Kira Raif

DATE:17 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 17 October 2018 at 1:46pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by visa conditions – conditions to be imposed – lengthy period of unlawful status – knowledge of visa refusal – failure to monitor visa status – knowledge of illegal conduct – failure to engage with Department – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.223

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant is a national of Lebanon born in December 1987. The applicant first travelled to Australia in September 2011 on a Student visa and he has held other visas since then. The applicant applied for the Bridging visa that is the subject of this review on 5 October 2018. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 9 October 2018 on the basis that the delegate was not satisfied that the applicant would abide by visa conditions, as required by cl.050.223 of Schedule 2 to the Migration Regulations (the Regulations). The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Regulations.

5. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

6. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the immigration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

   Whether the applicant will abide by conditions – cl.050.223

7. The present application was made on the basis that the applicant has an outstanding application for merits review in relation to the refusal to grant him a Partner visa. The Tribunal is satisfied the applicant meets cl.050.212.

8. This is the applicant’s second application for the Bridging visa. When making the present application, the applicant stated that he would abide by visa conditions and he provided a number of references in support of his application, as well as evidence of his relationship and his partner’s financial records.

9. The Tribunal has considered whether the applicant will abide by the conditions that would be imposed on his visa. In the circumstances of the present case, the Tribunal considers that the conditions below should be imposed:

   8101The holder must not engage in work in Australia.

   8401   The holder must report:

   (a)at a time or times; and

   (b) at a place;

   specified by the Minister for the purpose.

   8505The holder must continue to live at the address specified by the applicant before the grant of the visa.

   8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

   8564   No criminal conduct

10. The applicant provided to the Tribunal a copy of the primary decision record which sets out his immigration history.

11. The applicant first travelled to Australia in September 2011 holding a Student visa. He was subsequently granted a Class UC Temporary Work visa in Subclass 457. That visa was granted in December 2012 and was valid until December 2016. The applicant was an unlawful non-citizen from 4 October 2012 to 2 November 2012.

12. The applicant told the Tribunal that he did not know he was unlawful between October and November 2012. He said that in that period he was communicating with his migration agent about making an application for a business visa. The Tribunal is mindful that the applicant would have either been given a grant letter with the visa expiry date of his Student visa or he would have had the visa label affixed to his passport. The Tribunal is of the view that the applicant would have known when his Student visa expired. The applicant said that he did not know why his agent was taking such a long time to make the visa application and he thought he had 28 days to do that. The Tribunal notes that the 28 days is not meant to allow unlawful stay and while there is a grace period following the expiry of a visa, the intention of the legislation is that applications are made before a person becomes an unlawful non-citizen. The applicant had been in Australia since 2009 and had ample time to communicate with his agent and prepare the papers for the Business visa, once he made the decision to lodge that application. The Tribunal is not satisfied the applicant took adequate steps to ensure that he was not unlawful and that he was abiding by the Australian laws following the expiry of his Student visa in 2012.

13. In October 2015 the applicant made an application for a Class EN Employer Nomination Scheme visa and an application was lodged by a company as a nominator. Both applications were refused in October 2017 and November 2017 respectively. An application for review was lodged with the Tribunal in relation to the nomination but not the visa refusal. The applicant told the Tribunal that his previous lawyer told him the nomination was refused. He had 28 days to apply for review and he spoke to different lawyers and chose another lawyer. He kept in touch with the previous lawyer in relation to the visa refusal. The applicant said that he wrote to his previous lawyer about any outstanding application and his lawyer said there was ‘nothing else pending’. The applicant said that even though he kept in contact with the lawyer, he never received the letter from the lawyer about the visa refusal. If he did, he would have reviewed that decision because he did lodge the review application for the nomination.

14. The Tribunal finds the applicant’s evidence problematic. The applicant was aware that the nomination was refused in November 2017. The Tribunal does not consider it plausible that the applicant genuinely believed that once the nomination was refused, no action would be taken on his visa application for such a long time. While the Tribunal acknowledges the applicant’s evidence that he waited for a long time to have his previous application processed, the applicant was also aware that in this case, his nomination was already refused and having an approved nomination was a requirement relevant to his eligibility for the visa. The applicant said that he paid a lot of money to his lawyer and expected his lawyer to inform him once his application was refused, but in the Tribunal’s view, it was also the applicant’s responsibility to do everything possible to ensure he had full information about the visa process. It would have been easy for the applicant to take the simple step to make inquiries with the Department or instruct his new agent to make contact with the Department. The applicant claims he was unhappy with his previous agent and terminated that relationship. In such circumstances, it would not have been unreasonable for the applicant to be more proactive to obtain information about his visa processing, rather than rely on his lawyer.

15. The Tribunal finds that the applicant has not taken adequate steps to monitor the progress of his ENS visa application and to ensure his lawful status in Australia. The applicant’s failure to take such steps indicates, in the Tribunal’s view, the applicant’s willingness not to comply with the immigration laws.

16. On 18 July 2018 the NSW police conducted a search of the premises and charged the applicant with a number of offences. He was granted bail on the same day but placed in immigration detention under s.189 of the Act. On 27 July 2018 the applicant made an application for a Class UK Partner visa. That application was refused and application for review is presently before the Tribunal.

17. The applicant told the Tribunal that when the police came, they found a small box of steroids. The applicant said there was not much and it was only for personal use. 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. The applicant said that he bought the steroids three times over several months. He would not use these again. The applicant states, with respect to condition 8564, that he has been in the country for seven years and has never done anything wrong. This was his only criminal conduct. The applicant states that since his detention, he has done drug and alcohol courses.

18. With respect to his employment, the applicant said that when he was holding the Business visa, he was working as an administrator at a fish market. He also worked as a gas fitter. He worked because he did not know he was unlawful. The applicant states that he has the financial support from his partner, who has been paying the bills since his detention, and also from his family. The applicant said that he does not need to work and will not work.

19. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has not taken his obligations under the Act seriously. The first period of unlawful stay was because the applicant and his agent had not made the visa application on time and the applicant seems to believe that it was permissible for him to lodge the application within 28 days after the expiry of his visa. There is nothing to indicate that the applicant could not have prepared and lodged his application earlier. The applicant seems unconcerned about his unlawful status or the fact that making an application after visa expiry would render him an unlawful non-citizen.

20. The second period of unlawfulness was more extensive, exceeding seven months. The Tribunal does not accept the applicant’s evidence that the breach was unintentional because the Tribunal has formed the view that the applicant has not taken adequate steps to acquire the information about his visa status and to ensure his compliance with immigration requirements. Again, the applicant appears to have been unconcerned about his obligations.

21. The applicant admits that he worked as an unlawful non-citizen, in breach of the Act. The applicant claims that he was unaware of his unlawful status but in the Tribunal’s view, he should have been aware. The Tribunal has formed the view that if the applicant wanted to ensure he was compliant with his obligations under the Act, including in relation to employment, the applicant could have taken greater steps to make inquiries and to find out about his visa status.

22. The Tribunal also finds the applicant’s evidence about the use of steroids problematic. The applicant told the Tribunal that at some point he knew that it was illegal but decided to take the steroids anyway. The applicant’s conduct supports the Tribunal’s view that the applicant has a general disregard for the law.

23. Having considered the applicant’s circumstances, the Tribunal is not satisfied the applicant will abide by visa conditions. The Tribunal finds that the applicant has a strong desire to remain in Australia. He told the Tribunal that if his Partner application is not successful, he will appeal. He said he would prefer not to return to his home country and make the application offshore because he does not want to be separated from his partner. The applicant’s evidence to the Tribunal is that his application was refused because of Schedule 3 criteria. These would not apply in relation to an offshore application. If the applicant’s relationship with his partner is genuine, the applicant may have a greater chance of being granted the Partner visa offshore because he would not need to meet the Schedule 3 criteria. Yet, the applicant appears to have little or no intention of departing Australia and making such an application offshore. His desire is to remain in Australia for as long as possible.

24. The Tribunal is not satisfied that the applicant would engage with the Department if he is granted the Bridging visa. While the applicant submits that he has not made any effort to change address in the past, neither has he made any effort to engage with the Department while an unlawful non-citizen. The Tribunal is not satisfied he will do so in the future, particularly if he is not successful in his Partner visa application. The Tribunal is not satisfied that the applicant will report to Immigration or that he will advise Immigration of his address or of his change of address.

25. The Tribunal acknowledges the character statements and statements in support that have been submitted with the application, including offers of financial support. The Tribunal accepts that the applicant has some community support. However, given the applicant’s immigration history, including a lengthy recent period of unlawfulness while the applicant was in a relationship with his partner, the Tribunal has formed the view that the presence of such support will not necessarily ensure the applicant’s compliance with visa conditions. That has not happened in the past and the Tribunal is not satisfied it will happen in the future.

26. The applicant told the Tribunal that a security of $5,000 is available to him. In light of the Tribunal’s concerns set out above, the Tribunal is not satisfied this amount of security will act as a meaningful incentive for the applicant to abide by visa conditions.

27. The Tribunal is not satisfied the applicant will comply with conditions 8401, 8505 and 8506. The Tribunal is not satisfied the applicant meets cl.050.223.

28. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    Conclusion

29. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Kira Raif
    Senior Member