1903954 (Migration)

[2019] AATA 3957

1903954 (Migration) [2019] AATA 3957 (30 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1903954

MEMBER:  Tim Connellan

DATE:  30 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.223 of Schedule 2 to the Regulations; and

Statement made on 30 May 2019 at 1:18pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – immigration history – plead guilty to the charge of cultivating cannabis – gave birth to a baby – relationship with partner – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8506, 8564

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

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.

1. The applicant applied for the visa on 10 February 2019. At that time 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 Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

1. The decision to refuse to grant the visa was made on 13 February 2019 on the basis that the delegate was not satisfied that the applicant would abide by conditions that would be imposed on a bridging visa.

1. The applicant appeared before the Tribunal on 29 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Mr A].

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages when dealing with [Mr A].

1. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant will satisfy cl.500.223 and abide by conditions that would be attached to a bridging visa.

1. 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.

1. 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 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 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

1. In this case, cl.050.223 applies and in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:

   ·     8101 – No Work

   ·     8401 – Report as directed

   ·     8506 – Notify change of address within two working days

   ·     8564 – Must not engage in criminal conduct

   ·     8207 – No study

1. In assessing the likelihood that you will abide by these conditions, I have considered your immigration history, previous dealings with the Department, responses you have provided previously to Department officers and information held on department systems as well as submission made to this hearing and evidence presented at the hearing.

1. At the hearing the Tribunal discussed your immigration history in detail. You came to Australia in June 2013 holding a [student] visa current until 7 December 2016. You were enrolled to study a [Qualification 1] at [Institute 1].

1. You became involved with [Mr B] who you married August 2014. At that time you ceased studies and moved to Melbourne with your husband, as his family had arranged for you to be sponsored for work and in January 2015 you lodged a [skilled] visa application on which your husband was included as a dependent.

1. In June 2015 you withdrew your [skilled] visa application and were living with your husband in a rented house in [a] western suburb of Melbourne.

1. In or about September 2016 you separated from [Mr B] and moved to a separate house in [Suburb 1] where you lived on your own. You were receiving financial support from your parents in Vietnam.

1. Your student visa expired on 7 December 2016.

1. On 15 December 2016 you were hospitalised and underwent a removal of a foetus following miscarriage.

1. At about that time your husband returned to Vietnam.

1. On 24 December 2016 you met [Mr A] at a friend’s home and over the coming months you and he developed a relationship.

1. In June 2017 you became pregnant to [Mr A].

1. On 25 October 2017 you came to the attention of Victoria police in relation to the cultivation of cannabis at the house you had previously shared with your husband in [Suburb 1]. Also identified as an unlawful noncitizen.

1. You were held in remand in criminal custody at [a detention centre] pending criminal charges.

1. On [date] you gave birth to a baby girl named [Child C] while still incarcerated at the [detention centre].

1. At that time [Mr A] signed a guarantee that he would be responsible for the estimated charges of $16,000 should you have been able to have had your child at [a hospital].

1. [In] January 2019, you agreed to plead guilty to the charge of cultivating cannabis on the basis you were immediately released from criminal custody having been detained for 464 days. You were then detained under section 189 of the Migration Act and transferred to [an Immigration Detention centre] where you have remained until today’s hearing.

1. The Tribunal discussed the conditions it believed would be placed on any bridging visa if granted and you should the Tribunal that you would abide by those conditions. You said your life had been completely overturned by the events of the last two years and you now had a daughter who is your primary concern and a new partner.

1. You told the Tribunal that your plans were for you and [Mr A] to be married and have another child. You recognised that you had made some poor decisions but were also very aware of your new responsibilities which would ensure you complied with all visa conditions.

1. [Mr A] gave evidence that he had met you at a time when you had both suffered great loss. He said you provided one another with support and over time you had fallen in love. He declared that he loved you very dearly and also his daughter.

1. He told the Tribunal that visits to the detention centre needed to be made a week in advance and that he booked to see you for five days each week. He told the Tribunal that while there were occasions when work prevented him from visiting, he generally visited you at least four days a week and had done so for a long time.

1. Told the Tribunal that he had his own business from which he generated sufficient income to look after himself and his family when you got married. He told the Tribunal he lived with his brother and his wife and daughter in a large house in [Suburb 2] where you would live as a family on your release.

1. Your representative [Ms D] of [Law Firm 1] told the Tribunal she had instructions that if this review application was successful she was to lodge a Partner visa application without delay.

1. The Tribunal found the applicant and [Mr A] to be credible and honest witnesses.

The Tribunal accepts the applicants claim that her incarceration and the birth of her baby means she has completely reviewed her lifestyle and choices. Her relationship and plans with [Mr A] also provide real incentive for her to abide by visa conditions.

1. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

   ·cl.050.223 of Schedule 2 to the Regulations; and

Tim Connellan Member