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 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.
The delegate’s decision does not contain any discussion of reasons why these conditions were imposed.
The imposition of discretionary conditions is a matter for the decision maker. The Tribunal has carefully considered the applicant’s circumstances and the history of this matter in determining which conditions should be imposed.
Conditions 8101 and 8207
The applicant is awaiting the outcome of his application for a partner visa. He states that the purpose of the bridging visa application is ‘in order to reside lawfully in the community while awaiting the outcome of his partner visa application, which remains ongoing.’[1] He has provided the Department with a copy of a Tribunal decision record in respect of the partner visa application (NRST).[2] This Tribunal is not bound by decisions of other Tribunals, but it may none the less have regard to them. The NRST decision was made following a hearing at which the applicant and the Minister were both represented. The applicant was examined and cross examined. The applicant’s partner and a character witness gave evidence. Both the applicant and the Minister made legal submissions. The Tribunal member also had regard to sentencing remarks given in respect of the applicant’s criminal offences. The decision in NRST was made following consideration of all these factors.
[1] Submission dated 23 April 2025, attached to application for bridging visa.
[2] Attached to application for bridging visa (the Decision Record). This case is reported as NRST and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 12 March 2025 (NRST).
The Tribunal notes the following quote from a psychologist’s report as set out in NRST:
The Applicant is described as having good prospects for rehabilitation 'given the lack of significant antisocial behaviour in the past, a stable relationship and a history of attempting to build a career for himself.’[3]
[3] NRST at paragraph 26; see also paragraph 36.
The decision in NRST also notes:
… he graduated from nursing studies in Vietnam and came to Australia to pursue English and health science studies. … [he] states that in prison he felt guilt and remorse and has reflected on his choice not to remain sober rather than turn to drugs to relieve psychological pressure. The Applicant also states that he has worked in prison and has stayed away from drugs. [The Applicant] states that he and [his wife] have many good friends who have offered support and employment. He has also had offers of financial assistance to establish a business and would also like to study nursing or aged care.[4]
[4] NRST at paragraph 27.
The applicant attended a telephone interview with the delegate on 1 May 2025.[5] At that interview he said that he had no comments to make in relation to the imposition of a no work condition. However, at the conclusion of the interview the applicant’s agent did make a request that the delegate reconsider imposing the no work condition. The agent said that this would “… greatly elevate (sic) the restrictions. It will help him support the family and repay the government.” There is no audio recording of this interview, but the Tribunal considers that from context, the word “elevate” should be “alleviate”.
[5] Telephone interview conducted 1 May 2025.
The applicant is hoping for the grant of a substantive visa that will allow him to remain with his family here. This may be contrasted with a situation where an applicant is seeking release on a temporary basis, with the expectation that they will make arrangements to depart Australia. In that case, it may be necessary to impose a no work and/or no study condition so that an applicant is not tempted to remain here and does in fact depart. The Tribunal does not consider that this is the situation in the present case.
The Tribunal invited the applicant to comment on the imposition of the no work and no study conditions. He said that if he is able to work and/or study legally he would like to do so, but he will not do so illegally. He said that he remains interested in studying aged care if he has the opportunity. The applicant’s representative submitted that the applicant’s wife and young child are innocent parties and said that the restrictions and separation will cause unnecessary hardship to them and impede the family unit dynamic.
The Tribunal gives some weight to the evidence that the applicant wishes to support his family and reintegrate into his family and the community. The Tribunal gives weight to the nature of the substantive visa under consideration, which if granted will give the applicant lawful residence in Australia. The Tribunal notes the finding in NRST that the Department should not exercise its discretion to refuse the visa. There is nothing else before the Tribunal indicating any reason why the substantive visa will not or cannot be granted.
The submission and evidence provided on the morning of the hearing support that the applicant intends to comply with any conditions imposed on his visa if granted. He has made arrangements with his family in Vietnam to provide financial assistance in the event that he is not allowed to work. The Tribunal accepts the applicant’s evidence that he has made alternative arrangements in the event that he is not allowed to work but having regard to all the above, including the effect on the applicant’s family in Australia, the Tribunal does not consider there is any reason or reasons why conditions 8101 or 8207 need or should be imposed in the present matter.
The Tribunal has considered all of the above and has decided not to impose the discretionary conditions 8101 or 8207.
Condition 8564
The Tribunal notes the applicant’s criminal history set out in the delegate’s decision. At the hearing the Tribunal asked the applicant if he wished to make any submission in respect of that summary and he said that it is correct. The Tribunal asked if he wished to make any submission about the imposition of condition 8564. The applicant did not wish to make any submission. Given the applicant’s past criminal conduct, the Tribunal will impose condition 8564.
Condition 8506
The Tribunal notes that the applicant has lived in the Australian community without permission on two occasions in the past. At the hearing the Tribunal asked the applicant if he wished to make any submission in respect of the imposition of condition 8506. The applicant did not wish to make any submission. Given the applicant’s history as an unlawful non-citizen, the Tribunal will impose condition 8506.
Compliance
The Tribunal now turns to whether there is a risk that the applicant may not comply with the conditions if the visa is granted.
The delegate’s record of the interview with the applicant notes that when asked about links with criminals in Australia or overseas, the applicant explicitly denied any contact now. The interview record also contains the applicant’s response to a general question of whether he will breach visa conditions:
I never commit any assault during the time in MIDC. I not using drug. I only use for 2 months when I got caught. I have spent long time in prison enough time for me to think of me and which means I have a well plan for my future. I should be with my wife to do the plan together. I am in prison which delay my plan. If I am released to community even though I cannot work, I can still stay home to take care of house duty so my wife have more time to work and support the family. And even I cannot work for longer time, my wife can still work to take care of business. I promise I do not commit offence again and I would like to pay back to the community to the a/a govt. what bad thing I did.[6]
[6] Telephone interview conducted 1 May 2025.
The delegate found that there is a high risk that the applicant may not comply with condition 8564. The delegate found that:
… there is a high risk that you may not be able to comply with condition 8564 Must not engage in criminal conduct, due to your extensive history of breaking the law. I find there is a real risk because by your own admission, you remained in contact with inmates from prison who convinced you to commit further crimes and traffick (sic) drugs when you were in financial distress. I consider there is a high chance that you are still in touch with these friends. Coupled with the lack of evidence of financial support and your links to organised crime, I consider there is a high risk of recidivism and you reengaging in criminal activities.
At the hearing the Tribunal put the delegate’s findings to the applicant for comment. The applicant said that he admits he did the wrong thing on two occasions, but he has learned his lesson and does not want it to happen again. He said that his daughter has just started school, and he wants to be at home and to set a good example for her.
The evidence set out in NRST is that the applicant claimed he was not at the time of the second offences fully aware of the impact that reoffending may have on his immigration status.[7] The current Tribunal asked the applicant if he now understands the implications of reoffending for his bridging visa and on any current or future visa applications if he is found to have breached this condition. The applicant said that he did. The Tribunal gives this some weight.
[7] NRST at paragraph 16.
The Tribunal takes into account that the delegate’s assessment of a high risk was based partly on a finding that the applicant will not have access to financial support. This was in turn based on the imposition of the no work condition. The Tribunal has decided not to impose the no work condition and further gives weight to the applicant’s evidence that he can access family financial support and has been offered employment if he is released from detention.
The finding as to the risk of reoffending in NRST is:
NRST has committed serious offending and re-offended after already having engaged with the criminal justice system. However, I consider he is a low risk to the community in the future. The submissions for NRST and the substantial material gathered in support of what might be described as his social rehabilitation speak to the likelihood that this low level is acceptable. This is particularly because of the manner in which the critical risk factor of financial support coupled with secure employment are dealt with.[8]
[8] NRST at paragraph 47.
At the hearing the Tribunal asked the applicant how it can be satisfied that he will comply with the condition. As noted above the applicant said he now understands the implications of reoffending for his bridging visa and on any current or future visa applications if he is found to have breached this condition. The Tribunal asked the applicant about his co-offenders. He said that he is not in contact with any of them and has no intention of resuming contact with them. The Tribunal accepts that the applicant’s statements are genuine.
The Tribunal asked the applicant about the offences in immigration detention that are referred to in the delegate’s decision. The applicant said that these were minor and petty issues. He said that he was not disciplined or taken to court. The Tribunal put to him that the only evidence it has is what is written in the delegate’s decision and asked about the home-made alcohol incident. The applicant said that he could not really remember what happened, but he did not make the alcohol. The applicant’s agent later submitted that he understood the incident arose from the applicant’s roommate having fermented oranges. In the absence of any other evidence to the contrary, the Tribunal accepts that the immigration detention events were minor and gives this little weight in its consideration of the risk of the applicant reoffending.
The applicant has provided affidavits from family members in Vietnam. While these are focussed on the support that the Vietnamese family can provide if the applicant cannot work, the Tribunal also gives weight to what is said about the applicant’s commitment to his family. The applicant’s father asks the Tribunal to consider the applicant’s wish to complete his responsibility as a father and to have an opportunity to correct his mistakes here. The Tribunal has carefully considered the influence of his Australian family. This is not just in terms of the applicant’s desire to reintegrate and become a member of the family. The applicant has told the Tribunal that he is now well aware that any further offending will have a negative impact on his ability to remain in Australia with his family. The Tribunal gives this some weight.
The applicant told the Tribunal that there are no reasons that he will be unable to return to or will be otherwise unwelcome in his family home. He said that the offer of employment with a family friend remains. He said that he wants to work legally and wants to make amends to his family and the community. He said that he is confident that he will not engage in any more criminal conduct.
The Tribunal has considered the totality of the applicant’s circumstances, evidence, and submissions. The Tribunal gives some weight to the findings in NRST as to the applicant’s risk of reoffending. There is nothing before the Tribunal that leads it to doubt those findings. The Tribunal gives weight to the applicant’s expressed desire to make things right and return to his family here. The Tribunal gives weight to his understanding of what may happen if he breaches this condition. Having regard to all these circumstances, the Tribunal finds that the applicant intends to comply with condition 8564 and there is little to no risk that he will not do so. The Tribunal is satisfied that the applicant will abide by this condition.
There is nothing in the Departmental file or in the other information before the Tribunal that indicates the applicant will be unable to comply with condition 8506. The applicant has said that he understands this condition and will abide by it. The Tribunal is satisfied that the applicant will abide by this condition.

On the evidence before it, the Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted. Given this finding, the Tribunal finds that it is not necessary to impose a security. The Tribunal finds that the applicant meets cl 050.223.
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)