2320840 (Migration)

[2024] AATA 329

2320840 (Migration) [2024] AATA 329 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Quan Sy Do (MARN: 1577384)

CASE NUMBER:  2320840

MEMBER:Alison Murphy

DATE:3 January 2024

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 050.212 of Schedule 2 to the Regulations; and

·cl 050.221 of Schedule 2 to the Regulations; and

·cl 050.223 of Schedule 2 to the Regulations.

Statement made on 03 January 2024 at 9:51am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – period of unlawful residence and work – criminal activity – valid application for a partner visa – family business income – family financial support – separation from family – decision under review remitted           

LEGISLATION
Migration Act 1958, ss 73, 189, 501
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223; Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 December 2023. 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223.

3. The decision to refuse to grant the visa was made on 19 December 2023 because the delegate was not satisfied the applicant would comply with the conditions of the visa.

4. The applicant appeared before the Tribunal on 2 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review.

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

   BACKGROUND

7. The applicant is [an age]-year-old male national of Vietnam.

8. The delegate’s decision records that he first arrived in Australia [in] January 2018 as the holder of a [temporary] visa which ceased one month later. The applicant remained unlawfully in Australia until 13 April 2019 when he was granted a bridging visa which ceased on 1 May 2021. [In] May 2021 the applicant was convicted of cultivating a commercial quantity of cannabis and sentenced to a period of imprisonment of [term] with a non-parole period of 2 years. He was released from criminal custody and detained in immigration detention in February 2023.  A Parole Order dated [in] February 2023 indicates that his parole period will expire [in] May 2024.

9. The applicant lodged an application for a partner visa in February 2023. That visa application was originally refused by a delegate under s 501(1) of the Act as the delegate was not satisfied he met the character test and decided to exercise their discretion to refuse to grant the visa. On 25 July 2023, a member sitting in this Tribunal’s General Division set aside that decision and directed that the statutory discretion under s 501(1) of the Act is not to be exercised to refuse the applicant the bridging visa. As at the time of the current Tribunal’s decision, the partner visa application remained under assessment by the Department.

10. The applicant’s personal circumstances have been extensively recounted in the decision of the Tribunal’s General Division dated 25 July 2023 and the material produced to the Department and this Tribunal in the context of the current review is materially consistent with that before the first Tribunal.

11. In particular the Tribunal accepts the matters set out in the applicant’s oral evidence and written submissions dated 1 January 2024:

    ·The applicant was [age] years old when he entered Australia in January 2018;

    ·He commenced a relationship with his de facto partner [Ms A] in May 2019 and their [child] was born in [specified year];

    ·[Ms A] and their [child] live in a property in Melbourne with [Ms A]’s mother, sister and a friend. [Ms A] is the co-owner of a [business] in which she works;

    ·The applicant and [Ms A] lodged a partner visa application in February 2023 which is currently awaiting assessment by the department.

    Non-disclosure certificate

12. The Tribunal has before it the departmental file relating to the application for the bridging visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.

13. Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.

14. The Tribunal provided the applicant with a copy of the certificate prior to the hearing, inviting written or oral submissions as to its validity. The applicant’s representative made oral submissions to the effect that the Tribunal should have regard to any relevant matter contained in the document. The s.376 certificate appears to be valid on its face and the Tribunal finds accordingly.

15. As discussed with the applicant and his representative at hearing, the certificated information comprises internal correspondence between the Australian Border Force and the Department regarding the circumstances of the applicant’s release from prison and his subsequent detention under s 189 of the Act. The information is general in nature and to the limited extent it is relevant to the review, it has already been disclosed to the applicant in the delegate’s decision record and departmental correspondence. For these reasons the Tribunal has decided not to provide copies of that correspondence to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant will comply with the conditions imposed on the visa if a visa were to be granted.

    Time of application criteria

17. It is not in dispute that the applicant satisfies one of the grounds set out in cl.050.212. The delegate’s decision records that he has lodged a valid application for a partner visa which can be granted while he is in Australia and which has not been finally determined. Therefore the applicant meets cl.050.212(3) as well as the time of decision criteria (cl.050.221).

    Whether the applicant will abide by conditions - cl 050.223

18. 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.

19. 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].

20. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

21. The delegate’s decision records that there are no mandatory conditions required to be imposed on the bridging visa, but that the discretionary conditions that they would impose on any bridging visa granted to the applicant are as follows:

    • 8101 (No work)
    • 8207 (No Study)
    • 8506 (Notify Change of Address)
    • 8564 (Must Not Engage in Criminal Conduct)

22. Having regard to the applicant’s migration history and criminal offending, the Tribunal has formed the view that each of the above visa conditions identified in the delegate’s decision should be imposed on any bridging visa granted to the applicant. In these circumstances the Tribunal determines that each of conditions 8101, 8207, 8506 and 8564 should be imposed on the visa in the circumstances of the current case.

    Condition 8101 (No work)

23. It is not in dispute that the applicant has worked unlawfully in Australia in the past. The delegate’s decision records that at an interview on 18 December 2023, the applicant stated that up until his arrest in March 2021 he worked at various places as a handyman and then learned [a trade] and that he was paid in cash for the work he completed. At hearing the applicant acknowledged he had worked illegally after his arrival, saying he saw other people living and working in Australia without visas and he just followed what they were doing. He said that he was really stupid, that he deeply regretted his past conduct which had greatly impacted his wife and child. He said that after two years in prison and one year in immigration detention he would not make such mistakes again.

24. When asked about his assets, he stated he had a bank account containing approximately $1000, another joint account with his de facto partner which had a balance of approximately $10,000 and that his wife has approximately $50,000 in her own account. At his bridging visa interview with the delegate, the applicant stated that his wife earns $1,000 - $1,300 per week at her [business].

25. Following the hearing the applicant provided documentary evidence of the applicant’s funds of just over $1000 held in trust by the detention centre, a joint bank account with his [Ms A] containing $10,000 and [Ms A]’s own bank account containing $49,000. An attached submission confirms the couple’s friend [Ms B] deposited $10,000 into the join bank account on the day of the hearing, consistent with her stated wish to support the couple.

26. The delegate records that the applicant wishes to have work rights attached to his visa so that he could work at a [business] owned by [Ms B]. The first Tribunal’s decision records that [Ms B] gave oral evidence at hearing, confirming that she would offer the applicant employment if he were released from detention and provide other support as necessary. A copy of [Ms B]’s statutory declaration was provided to the current Tribunal after the hearing.

27. While the Tribunal accepts the applicant would prefer to work lawfully in Australia and has an opportunity to work in [Ms B]’s [business] if his visa permits, it is satisfied that he will abide by condition 8101 if that condition is applied to his bridging visa. In making that assessment the Tribunal notes his very young age when he arrived in Australia and commenced working unlawfully. The Tribunal accepts that his position is significantly changed and that he is genuinely distressed at being unable to provide emotional and practical support for his partner and young child from whom he has been separated for three years. The Tribunal is satisfied that the applicant’s partner has the financial capacity to support the applicant during any period in which he is unable to work and that the applicant will not jeopardise his pending visa application by working.

    Condition 8207 (No study)

28. The delegate was satisfied the applicant would comply with this visa condition and the Tribunal concurs with that assessment.

    Condition 8506 (Notify new address)

29. The delegate was not satisfied the applicant would comply with this visa condition, noting his immigration history and lack of engagement with the Department. However as noted above, the Tribunal is satisfied that the applicant’s situation is significantly different now. He is the father of a young child from whom he remains separated by result of his detention.

    Condition 8564 (Must not engage in criminal behaviour)

30. The delegate’s decision records that at interview the applicant stated that he accepted work as a crop sitter despite being aware that it was illegal because he was in financial difficulties at the time. The delegate considered that had he not been arrested, it was probable that his criminal activities would have continued.

31. The circumstances in which the applicant’s criminal offending took place have been examined at length by the first Tribunal in its decision dated 25 July 2023. That Tribunal had access to legal documents not available to this Tribunal, including the court’s sentencing remarks, and relevantly found:

    55. The Tribunal notes that the Applicant lived in Australia illegally between 3 February 2018 (when his entry visa expired) and 9 April 2020 (when he obtained a bridging visa) and he acknowledged working in breach of his visa conditions. This indicates that the Applicant was at least careless in his disregard for Australian immigration laws. However, there is no evidence that the Applicant’s criminal offending was part of a pattern of behaviour or was indicative of antisocial attitudes or underlying character flaws on the part of the Applicant. Aside from the offence for which he was convicted the Applicant has a clean criminal record. His record both in prison and while in immigration detention indicates that he was co-operative and compliant and did not exhibit any propensity to engage in criminal conduct.

32. While the first Tribunal did not accept that the applicant had no other option other than to resort to crime, it did accept that the applicant’s offending occurred against the background of his economic difficulties resulting from the COVID-19 pandemic and associated restrictions which made it difficult for the applicant to support his new family. It found the COVID-19 pandemic was a significant contributing factor to the circumstances giving rise to his offending and such as situation was unlikely to arise again. It concluded:

    58. The Tribunal is also satisfied that the Applicant’s imprisonment has taught him a valuable lesson and that he is genuinely remorseful for his offending. He presented as a credible witness and expressed unqualified regret for having broken the law and a commitment to not re-offend. He also demonstrated by his conduct while on bail when he obtained employment to support his family and through his unblemished record while in prison that he is capable of acting responsibly and contributing positively to the community. It is also notable that he pleaded guilty to the charge against him at an early stage, and the Sentencing Judge tacitly accepted his early plea as indicative of genuine remorse

33. The evidence before this Tribunal indicates the applicant is committed to providing emotional support to his wife and young child, that he is well supported in the community and that he is genuinely regretful for his past conduct for which his young family have paid a very heavy price. The material before the tribunal suggests that the applicant’s young [child] suffers from developmental delays, but the relevant medical assessments required for diagnosis have not yet been completed. His wife is experiencing mental health issues as a result of the family’s difficult circumstances.

34. The Tribunal has considered whether a security is necessary to require compliance with the visa conditions but has concluded that it is not. 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.

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

    DECISION

36. 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 050.212 of Schedule 2 to the Regulations; and

    · cl 050.221 of Schedule 2 to the Regulations; and

    · cl 050.223 of Schedule 2 to the Regulations.

    Alison Murphy

    Member