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…

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 Le (Migration)

Details

AGLC: Le (Migration) [2018] AATA 4767
Case: [2018] AATA 4767
Decision Date: 11 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa (Subclass 050) by Mr Le. The delegate refused the application, finding that Mr Le would not abide by the conditions of the visa, specifically the condition not to engage in criminal conduct. This decision was under review by the Tribunal, which heard evidence from Mr Le, his partner Ms Nguyen, and his step-son.

The primary legal issue before the Tribunal was whether Mr Le would abide by the conditions that would be imposed on a Bridging Visa, as required by cl.050.223 of the Migration Regulations 1994. This required the Tribunal to consider Mr Le's immigration history, previous breaches of immigration laws, the wilfulness of those breaches, any mitigating circumstances, and evidence of contrition. The Tribunal also had to consider whether a security bond would be an appropriate measure to ensure compliance, referencing principles from *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*.

The Tribunal found that Mr Le met the criterion in cl.050.212(3) as he had made a valid application for a Partner Visa that had not been finally determined. However, regarding cl.050.223, the Tribunal noted Mr Le's awareness of his unlawful status in Australia, his failure to proactively rectify his immigration status, and his arrest and charge for breaching bail conditions. Despite evidence of community support and a desire to remain in Australia with his family, the delegate was not satisfied that Mr Le would abide by visa conditions, concluding that a security bond would not ensure compliance given his history and outstanding criminal matters. The Tribunal, however, considered that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCE12. 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 application15. 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.050.22318. 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:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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