Le (Migration)

[2018] AATA 4767

Le (Migration) [2018] AATA 4767 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Sang Le

CASE NUMBER:  1828747

DIBP REFERENCE(S):  BCC2018/3640088

MEMBER:Wendy Banfield

DATE:11 October 2018

PLACE OF DECISION:  Sydney

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.050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions will be imposed if the visa is granted; and

·to require a security of $15,000 for compliance with the conditions

Statement made on 11 October 2018 at 4:43pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by visa conditions – outstanding criminal matters – breached bail conditions – family violence matter – low risk of further offences – new relationship – wishes to stay in Australia with partner and step-son – consistent evidence about family living arrangements – security bond – incentive to comply with conditions – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 269
Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.221, 050.223, 050.617 Schedule 8 condition 8401, 8506

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

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.

2. The applicant applied for the visa on 25 September 2018. 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).

3.     The decision to refuse to grant the visa and the decision relating to requiring a security was made on 28 September 2018 on the basis that Mr Li would not abide by conditions attached to a Bridging Visa.

Background

4.     Mr Le is a citizen of Vietnam and is currently 33 years old. He first travelled to Australia on 10 May 2013 as the holder of a Subclass 572 Student Visa. On 11 March 2015 Mr Le applied for a further student visa which was refused. He did not seek a review of the decision and on 20 July 2015 he became an unlawful non-citizen. He remained in Australia unlawfully until he was arrested by NSW Police on 11 September 2018 due to outstanding criminal matters.

5.     Mr Le had previously been charged with contravening an AVO, assault, and failure to appear in accordance with bail acknowledgement.

6.     When interviewed by the Department, Mr Le made the following comments:

·He did not know how to contact the Department after his visa ceased but also thought he would be deported;

·His ex-wife had promised to apply for a partner visa but never did causing them to argue and eventually separate;

·His ex-wife contacted police and obtained an AVO;

·He had breached the AVO due to his ex-wife tricking him;

·He had been working until detained earning an average of $1,000 per week;

·A migration agent that he consulted demanded $30,000 for advice about his situation which he did not have;

·He and his current partner held a traditional wedding ceremony in July 2018;

·Family and friends have helped with funds to apply for a partner visa;

·He did not know he needed to update his address with immigration;

·His partner and step-son are dependent upon him as his partner does not drive or speak English;

·He will abide by visa conditions if granted a Bridging Visa.

1. The delegate who considered the application noted the following issues:

   ·The applicant remained in Australia despite being aware that he had no legal right to do so;

   ·The applicant claimed he had not applied for a partner visa due to not having the funds but he was earning $1,000 per week and his partner received $500 Centrelink payments;

   ·The applicant did not take steps to rectify his immigration status and it was considered he would not have contacted the Department if not located by police;

   ·The applicant has stated that he is unwilling to return to Vietnam and wishes to remain in Australia with his de facto partner and step-son;

   ·The applicant declared he had to work to support his family and despite there being community support, it was determined he would engage in paid work if granted a Bridging Visa;

   ·The applicant was arrested and charged with breaching bail conditions;

   ·Due to the applicant having breached an AVO and bail conditions the delegate was not satisfied the applicant would abide by the condition not to engage in criminal conduct;

   ·The applicant has a strong desire to remain in Australia and if his partner visa is unsuccessful, he may conceal himself in the community;

   ·Given the length of time the applicant remained in Australia, his record of working and his outstanding criminal offences, it was determined a security bond would not ensure his compliance with visa conditions.

   8.     Based on these considerations, the delegate was not satisfied the applicant would abide by the minimum conditions imposed on a Bridging Visa. Accordingly, the delegate found that the applicant did not satisfy the criteria in cl.050.223 and refused the application.

   9.     The applicant appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thuong Nguyen, the applicant’s partner and his step-son, Peter Lipovic. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   12.      The issue in this case is, given the applicant’s background and immigration history in Australia, whether he will abide by conditions that would be imposed on a Bridging Visa.

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

   14.      In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

   Substantive visa application

   15.      Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

   16. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

   17.      On the evidence provided, the applicant has applied for a Partner Visa which has not been finally determined. Accordingly, the applicant meets cl.050.212(3).

   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 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 Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

   21.      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].

   22.      In this case, cl.050.617 applies because the Tribunal considers the applicant should be required to abide by relevant visa conditions. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

·    8101 (no work) (mandatory);

·    8207 (no study);

·    8401 (report as directed);

·    8506 (notify change of address); and

·    8564 (must not engage in criminal conduct).

23.      Mr Le is in a de facto relationship with his current partner and has a step-son aged 7 who is her child from a previous marriage. He claimed he was working as a tiler during the time he was in Australia unlawfully to support himself and his family. At the time Mr Lee was detained, his partner was not working. During the hearing, Ms Nguyen gave evidence that she had previously worked and has recently obtained a full-time job in a nail salon. She declared she would be working six days a week and Mr Le would continue his responsibility for taking his step-son to and from school. Evidence was also submitted in the form a bank statements to indicate funds have been provided by the brother and sister-in-law of Ms Nguyen to support her and Mr Lee while they await a decision on the partner visa application. Other family members of Ms Nguyen provided statements indicating they will support Mr Le financially.

24.      The applicant’s representative provided a written submission stating Mr Le knows he will not be able to work and that if he does, his visa would be cancelled. It was claimed Mr Le does not want to jeopardise his partner visa application. During the Tribunal hearing, Mr Le and Ms Nguyen gave consistent evidence about their previous living and working arrangements as well as plans for their financial support in future. For these reasons, the Tribunal is satisfied Mr Le will comply with condition 8101.

25.      Mr Le gave evidence about the period in which he was unlawful. He said he had investigated the possibility of applying for a visa through his work as a tiler and had also sought advice about his situation.  He declared he did not want to be unlawful but after he met his current partner, he did not want to be separated from her and his step-son. Mr Le said he will comply with any conditions imposed on a Bridging Visa and according to his representative, he is aware that his visa would be cancelled if he has a penalty imposed as a result of his court date later this month.

26.      Mr Le has been living with his partner and appears to have developed a close bond with her 7 year old son who also appeared at the hearing. It was claimed, and the Tribunal accepts, that Mr Le’s step-son does not have a relationship with his biological father and considers Mr Le to have taken that role. The Tribunal found the witnesses to be consistent and credible. They were able to talk about each other and their lives together naturally and without much hesitation. Ms Nguyen’s son referred to Mr Le spontaneously as ‘dad’ and provided information freely about the step-father role he occupies on a daily basis.

27.      The representative’s submission states Mr Le has a stable address and relationship, has engaged with a migration agent in the hopes of resolving his situation lawfully and is committed to abiding by visa conditions. The Tribunal has weighed the evidence carefully in this regard and is satisfied Mr Le has reasons to comply with conditions 8401 and 8506.

28.      During the hearing, Mr Le was asked about the circumstances of his criminal charges. He explained that he had a previous marriage to a person who was going to sponsor him through a partner visa. It was claimed this did not eventuate and the couple argued during the relationship. Mr Le claimed on one occasion he had been arguing with his partner in a car including struggling over possession of his phone. He said police were called but his side of the story was not listened to because of the presence of an AVO. These events occurred three years ago and it was submitted Mr Le has had no contact with his former partner since then and has not attempted to contact her.

29.      The applicant’s representative made submissions as to the nature and seriousness of the conduct, acknowledging it was serious but noting the conduct was not committed against vulnerable members of society, has not recurred, no sentence has been imposed and no offences have been committed in detention. It was submitted Mr Le poses minimal risk to the Australian community and is fully aware that any further offences would lead to his detention and deportation. It was claimed Mr Le will comply because he has an ongoing immigration matter. Having had the benefit of speaking to the applicant, his partner and step-child and taking into the account the representative’s written submission, the Tribunal accepts the applicant is a low risk of further offences and will comply with condition 8564.

30.      The Tribunal acknowledges Mr Le has a poor immigration history in Australia and has committed offences of a serious nature which are still before the courts. These are matters significantly against him in deciding whether he should be granted a Bridging Visa. However, against this background, Mr Le has a new relationship which includes a young child and he appears to have been living a stable life prior to his detention. He has evidence of financial support from his partner and her family members. The same people provided statements attesting to his recent good behaviour and character leading them to support the relationship between Mr Le and Ms Nguyen. Submissions were also made regarding the rights of the child as they relate to Mr Le’s step-son and the benefits for the family unit in Mr Le being released and allowed to live in the community pending the outcome of his partner visa application.

31.      The Tribunal has considered the evidence individually and cumulatively. On balance, the Tribunal is persuaded the applicant is likely to comply with all the conditions imposed on a Bridging Visa. Nevertheless, given Mr Le’s adverse prior conduct towards the Department, the Tribunal considers a financial incentive to ensure compliance is required. Therefore, the Tribunal directs a security amount of $15,000 be imposed.

32.      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.

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

34. 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

35.      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.050.223 of Schedule 2 to the Regulations.

36.      The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions will be imposed if the visa is granted; and

·to require a security of $15,000 for compliance with the conditions.

Wendy Banfield

Member