Hoang (Migration) - [2025] ARTA 918

HOANG (MIGRATION) [2025] ARTA 918 (14 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Van Diep Hoang
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2523451
Tribunal:General Member M Brereton
Place:Melbourne
Date:  14 May 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.223 of Schedule 2 to the Regulations.
The Tribunal also orders the primary decision maker:
·to indicate to the applicant that conditions 8506 and 8564 will be imposed if the visa is granted.

Statement made on 14 May 2025 at 12:10pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994(Cth), Schedule 2, cls 050.222, 050.223
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
STATEMENT OF REASONS
APPLICATION FOR REVIEW

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) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 29 April 2025. 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.
The decision to refuse to grant the visa was made on 2 May 2025 on the basis that the delegate was not satisfied that the applicant will abide by conditions imposed on the visa. The delegate considered that the relevant conditions included 8564 (Must Not Engage in Criminal Conduct) and 8101 (No Work). The delegate also decided that no amount of security would be appropriate to support compliance and did not request that a security be provided.
The applicant appeared before the Tribunal at a video hearing on 14 May 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will abide by conditions imposed on a bridging visa. The Tribunal has had regard to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoang (Migration)

Details

AGLC: Hoang (Migration) [2025] ARTA 918
Case: [2025] ARTA 918
Decision Date: 14 May 2025

CaseChat Overview and Summary

Hoang was the applicant in a case heard by the Administrative Appeals Tribunal, where the central issue was whether the applicant would abide by the conditions imposed on a bridging visa. The Tribunal reviewed the evidence presented by Hoang, including submissions and affidavits from family members in Vietnam. Clause 050.223 of the Migration Regulations required the Tribunal to be satisfied that Hoang would abide by any conditions imposed if a bridging visa were granted. The Tribunal considered Hoang’s past immigration history, any previous breaches of immigration laws, the significance of those breaches, and whether there were any mitigating circumstances or signs of contrition. If satisfied that Hoang would only comply with the conditions under a financial incentive, the Tribunal would need to consider a security decision as per s 269 of the Migration Act. In this case, the Tribunal concluded that the delegate had not adequately considered whether Hoang would abide by the visa conditions, and therefore set aside the decision and remitted the matter for reconsideration.

The Tribunal identified that the delegate had not fully addressed the criteria under cl 050.223, which requires satisfaction that the applicant would comply with visa conditions. The Tribunal was not convinced that the delegate had sufficiently considered Hoang’s past immigration history, potential mitigating circumstances, and Hoang’s prospects of abiding by the conditions. The Tribunal also noted that the delegate had not clearly indicated which conditions would be imposed if the visa were granted. Consequently, the Tribunal set aside the decision and remitted the matter to the Minister for reconsideration, ensuring that the delegate would consider the remaining criteria for the visa, particularly focusing on whether Hoang would abide by the visa conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant will abide by conditions imposed on a bridging visa. The Tribunal has had regard to the evidence in the Departmental file, including the applicant’s submissions to the delegate. On the morning of the hearing the applicant provided a submission and affidavits of support from family members in Vietnam. This has also been considered. Whether the applicant will abide by conditions - cl 050.223 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. 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]. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finkelstein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37]. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27]. In this case, cl 050.223 will apply if the Tribunal is satisfied that certain conditions should be imposed on the visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. Conditions The delegate found that there are no mandatory conditions. The delegate decided that the following conditions should be imposed on the visa:8101 - The holder must not engage in work in Australia.8207 - The holder must not engage in any studies or training in Australia.8506 - The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.8564 - The holder must not engage in criminal conduct.

Decision

Reasons for decision

Having regard to all the above, the appropriate course is to set the decision aside and remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:·cl 050.223 of Schedule 2 to the Regulations. The Tribunal also orders the primary decision maker:·to indicate to the applicant that conditions 8506 and 8564 will be imposed if the visa is granted.Date(s) of hearing: 14 May 2025 Representative for the Applicant: Mr Quan Sy Do (MARN: 1577384)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.