Maksoud (Migration)

[2018] AATA 5979

Maksoud (Migration) [2018] AATA 5979 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Walid Maksoud

CASE NUMBER:  1822228

DIBP REFERENCE(S):  BCC2018/2826104

MEMBER:Helena Claringbold

DATE:9 August 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 09 August 2018 at 1:57pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – immigration history – unlawful non-citizen – worked unlawfully – blatant disregard for Australian immigration laws – arrested and charged with criminal offences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.617, 050.618

CASES
Applicant VAAN of 2002 v MIMIA (VAAN) (2003) 70 ALD 289

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 30 July 2018, Mr Walid Maksoud, the applicant, applied for a Bridging E (Class WE) visa. The application was made on the grounds that the applicant has applied for a substantive visa that has not been finally determined.

2. On 31 July 2018, a delegate of the Minister of Home Affairs and an authorised officer relating to requiring a security under s.269 of the Migration Act 1989 (the Act) refused to grant the visa. The delegate was not satisfied that the applicant would abide by visa conditions and therefore the applicant did not satisfy cl.050.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. At the time of application, Class WE contained two subclasses: Subclass050 and Subclass 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa.

4. On 7 August 2018, the applicant appeared before the Tribunal to give evidence and present arguments.  He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also took evidence from Mr Bilal Mohsen. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration the evidence in the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   ISSUE

7. The issue in this matter is whether the applicant will abide by visa conditions and meet cl.050.223 of Schedule 2 to the Regulations.

   Does the applicant satisfy cl.050.212?

8. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

9. On 27 July 2018, the applicant lodged a valid application for a Combined Visa Subclass UK820/BS801 partner visas. The Tribunal is satisfied that the applicant has applied for a substantive visa, which has not been determined and he therefore meets cl.050.212(3) of Schedule 2 to the Regulations.

   Whether the applicant will abide by conditions - cl.050.223

10. Clause 050.223 of Schedule 2 to the Regulations 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 the visa. 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.

11. When considering cl.050.223 of Schedule 2 to the Regulations, 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 migration 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 2002 v MIMIA (VAAN) (2003) 70 ALD 289 at [15]-[16].

    Will the applicant abide by conditions if a bridging visa is granted?

12. Clause 050.617 and cl.050.618 of Schedule 2 to the Regulations prescribe that certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 The holder must not engage in work in Australia.

    ·8401 The holder must report as directed - (a) at a time or times; and (b) at a place; specified by the Minister for the purpose.

    ·8207 No study.

    ·8506 The holder must notify a change of address; and

    ·8564 The holder must not engage in criminal conduct.

    CLAIMS AND FINDINGS

13. As recorded in the delegate’s decision record and in requesting the grant of the visa, both prior to and at the Tribunal hearing, the applicant, his migration agent and a witness provided the following information.

14. The applicant was born in December 1987.  He is a citizen of Lebanon. On 11 September 2010, the applicant entered Australia as the holder of a student visa.  Amongst other visa conditions, the visa contained conditions 8105 work limitations and 8202 continues studying.  On 3 October 2012, the visa ceased and the applicant became an unlawful non-citizen in the community.

15. On 12 December 2012, the applicant was granted a Subclass 457 visa valid until 12 December 2016. On 2 October 2017, the applicant’s application for an Employer Nomination (ENS) Subclass EN186 visa was refused. On 16 October 2017, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the refusal decision.  On 30 November 2017, the applicant’s Bridging A visa ceased and he became an unlawful non-citizen in the community.

16. On 18 July 2018, the applicant was located during a search of premises by New South Wales police.  During the search of the premises, the police found a large quantity of steroids. The applicant was arrested and taken to Fairfield police station. On 18 July 2018, the applicant was released from criminal custody and taken to Villawood Immigration Detention Centre (VIDC) where he currently resides.

17. The applicant was due to appear before Fairfield Court on 6 August 2018. He is charged with possession of prohibited drugs, goods in custody and possession of prescribed prohibited drugs. The applicant’s migration agent appeared before the court on behalf of the applicant and entered a plea of not guilty to the charges. The matter was adjourned to 17 September 2018 for mention.

18. On 27 July 2018, the applicant lodged an application for Combined Visa Subclass UK820/BS801 partner visas. On 31 July 2018, during a Department interview and at the Tribunal hearing the applicant claimed that he did not receive the outcome of the ENS visa refusal and was unaware that he was an unlawful-non-citizen. He stated that he had been unsuccessful in contacting his migration agent.

19. During the Department interview the applicant stated that, he entered into a de facto relationship with his partner in 2016, however he had not mentioned his relationship to anyone. His partner lived with his parents and they do not know about the parties’ relationship.  His rent is $290 weekly and he is selling his car and his partner and aunt can support him.  The police found ‘some stuff’ that he should not be using and he has nothing to do with anything else drug related. He is a law-abiding person and kept the substance for personal use to gain weight. The applicant told the Tribunal that he has been in a de facto relationship with his partner since 2016. He stated that his partner is with him every day, but sleeps between the visa applicant’s residence and his parents’ residence. Both the applicant and his partner spoke of their interdependency on each other.  They stated that they have not disclosed their relationship to family members because of cultural and religious expectations which are unsympathetic to same-sex relationships.  

20. Third-party statements attest to the good character of the applicant. In her statement, the applicant’s aunt declared that she will support the applicant and that he will abide by visa conditions. Other statements attest to the genuine and continuing de facto relationship the applicant and his partner share. They describe the applicant and his partner supporting each other and the difficulties they face in disclosing their same-sex relationship.

21. The Tribunal determined that the applicant remained in Australia unlawfully and worked unlawfully for more than eight months. During that time he made no attempt to regularise his status. He told the Tribunal that he was unaware of his unlawful status.  He claimed that his previous agent had not advised him about the ENS visa refusal.  He told the Tribunal that he trusted his agent and contacted the agent numerous times seeking advice on the outcome of the application. He provided copies of various email exchanges between him and his then agent. He said that he had not approached the Department of Home Affairs as he was unaware he could do this. The applicant’s current migration agent informed the Tribunal that after the refusal of nomination on 2 October 2017, the applicant appointed his firm to act on the applicant’s behalf in the review of that matter. He stated that it was reasonable for the applicant to rely on his previous migration agent to advise him about the visa refusal, because of the longevity of their relationship. He claimed the applicant’s application for review of the ENS nomination refusal evidenced that had the applicant been told about the ENS visa refusal he would not have applied for review and would not have become unlawful. The Tribunal does not accept this reasoning because the right of review for the ENS nomination is with the nominating employer and not the ENS visa applicant.

22. The Tribunal accepts that the applicant contacted his previous migration agent. In an exchange of communication on 20 November 2017, which is after the ENS visa refusal on 2 November 2017, the applicant asked the migration agent ‘if u get anything about my file could y plz forward it to me’ and the migration agent responded ‘which file are you talking about?’ and ‘other than the refusal, they wouldn’t normally send anything after that’. The Tribunal is unable to determine from the information provided exactly which refusal is being discussed. As this exchange is after the ENS visa refusal on 2 November 2017, it is logical to consider that it would be in connection with the ENS visa refusal.  The Tribunal asked the applicant whether he had lodged a complaint about his claims of malpractice by his previous agent and he stated that he had not. The Tribunal does not accept that, if as is claimed the applicant was concerned about the outcome of the ENS visa application, why he would not present to the Department of Home Affairs to determine the status of the ENS visa application, or, instruct his newly appointed migration agent, at that time, to determine the status of the ENS visa application. Instead, he remained in Australia unlawfully and worked in Australia unlawfully.

23. During the Department interview the applicant stated that he cannot support himself without working.  The applicant told the Tribunal that prior to entering VIDC he worked part time and earned $600 weekly. He stated that his rent of $290 is shared with his partner and they share other expenses. He said that he has $3,000 in the bank and has loan debts of $32,000. On the other hand, he said there are items he can do without and the applicant’s partner told the Tribunal that he would support the applicant. Other information is that the applicant’s aunt would provide the applicant with support. The Tribunal is of the view that the applicant has shown blatant disregard for Australian immigration laws. It is not satisfied that if the applicant were released into the community he would not engage in work because on the evidence he has been working in Australia for at least eight months unlawfully, he previously stated that he cannot support himself without working and he has $32,000 in debt to be repaid. The Tribunal is not satisfied that if the applicant were released into the community that he would abide by condition 8101.

24. The evidence before the Tribunal is that the applicant was arrested and charged with possession of prohibited drugs, goods in custody and possession of prescribed prohibited drugs. The applicant told the Tribunal that he had been using steroids intermittently for a year.  He said that ‘he got it from a guy’ six or seven times in differing amounts, sometimes ‘six bottles’ and sometimes ‘four bottles’ and the cost per bottle was $60 which would reduce if you purchased a larger amount. He said that in the beginning he didn’t know it was illegal and didn’t know it was a ‘big deal’. He stated that he used the steroids because of low self-esteem and because he wanted to look good for his partner.  He told the Tribunal that it was a bad mistake and he would not be ‘touching steroids’ again.  The applicant admits to using steroids. Even if the Tribunal accepted that the applicant has been in a de facto relationship with his partner since 2016, it does not accept that this relationship would prevent him using steroids because on the evidence the applicant possessed and used steroids intermittently for the last year of the parties’ relationship. The Tribunal is not satisfied that if the applicant was released into the community that he would not revert to using steroids. The Tribunal considered the applicant’s evidence that even though he knew the possession of steroids is unlawful he continued to possess and use them, regardless of what Australian law requires. The Tribunal is not satisfied that the applicant would abide by visa condition 8564.

25. The Tribunal considered the evidence individually and as a whole. The Tribunal is not satisfied that if granted a bridging visa the applicant would not engage in work or engage in criminal conduct, or that he would abide by conditions 8101 and 8564. In coming to this decision the Tribunal considered the evidence about the applicant’s financial matters and is not satisfied, even after considering the offers of support from his partner and aunt that, the applicant would not work unlawfully in Australia to support him and repay his debts. It is concerned that the applicant has entered a plea of not guilty to the charges brought against him.  However, it is also concerned by the applicant’s evidence, that even after he realised that he was breaking Australian law he continued to have possession of prohibited drugs. As the Tribunal determined that the applicant would not comply with conditions 8101 and 8564 it has not gone on to consider the other conditions for the grant of the visa.

26. The Tribunal deliberated on whether the payment of a security would assist it to be satisfied that the applicant would abide by the conditions on the visa if granted. After considering the length of time the applicant remained in Australia unlawfully and his record of working in Australia and his possession of an unlawful substance, the Tribunal is not satisfied that even if a substantial security bond was available, that the applicant would abide by the conditions on the visa. The Tribunal finds, therefore, that the applicant does not meet cl.050.223 of Schedule 2 to the Regulations.

27. There is no evidence before the Tribunal that the applicant satisfies any of the alternative subclauses.

28. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

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

30. 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.

    DECISION

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

    Helena Claringbold
    Member