Nguyen (Migration)

[2021] AATA 5510

Nguyen (Migration) [2021] AATA 5510 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Truong Manh Nguyen

CASE NUMBER:  2115968

Home Affairs REFERENCE(S):               BCC2021/2099593

MEMBER:Steven Griffiths

DATE:15 November 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 15 November 2021 at 3:55pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General))  –criminal conviction – knowingly and willingly being involved in an illegal activity for profit – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.223

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 3 November 2021. 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 5 November 2021 on the basis that the applicant would not meet provisions of cl.050.223 and abide by conditions attached to a visa.

4. The applicant was assisted by his registered migration agent, Ms. Nhi (Michelle) Huynh, of Luat Lawyers.

5. The applicant appeared before the Tribunal on 15 November 2021 by video link to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence by telephone from the wife of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, with the migration agent taking part.

6. The Tribunal notes that it was necessary to seek a change of interpreter approximately 20 minutes into the hearing due to equipment and communication issues.  

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Immigration status of the applicant – cl.050.211

8. Clause 050.211 is met if, at the time of application:

   (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

9. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

10. The Tribunal accepts the documented and oral evidence of the applicant that he arrived in Australia on 5/7/08 as a dependent to a Student 572 Visa holder, a person who the applicant was married to, with the parties separating and divorcing in 2010.

11. The Tribunal accepts the documented evidence that the dependent Student 572 visa o the applicant was cancelled on 19/6/12, with the applicant remaining in Australia after the required departure period of 28 days and becoming an unlawful non-citizen.   

12. Accordingly, the applicant meets cl 050.211(1).

13. The Tribunal accepts the documented evidence that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

14. Accordingly, the applicant meets cl 050.211(2).

15. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa – cl.050.212

16. 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.

17. In this case, the applicant is seeking to meet cl 050.212(2), with the applicant not claiming to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.

    Acceptable arrangements to depart Australia

18. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

19. The Tribunal accepts the documented and oral evidence of the applicant having booked a flight from Brisbane to Vietnam for departure on 21 May 2022.

20. For these reasons, the Tribunal is satisfied that at the time of application the applicant was the subject of acceptable arrangements to depart Australia. Therefore the applicant meets  cl 050.212(2).

    Whether the applicant continues to satisfy the time of application criteria - cl 050.221

21. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.

22. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221.

    The requirement to be interviewed by an authorised officer - cl 050.222

23. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

24. The Tribunal accepts the documented and oral evidence of the applicant of he having been interviewed on 4 November 2021.

25. The Tribunal notes the documented statement of the applicant, dated 14 November 2021 while having been received on 12 November 2021, in which he states that comments purported to have been made by him during the interview on 4 November 2021 are not correct at all times, with the statement putting forward the comments he actually made.

26. Accordingly, the applicant meets cl 050.222.

    Whether the applicant will abide by conditions - cl 050.223

27. 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.

28. 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].

29. The Tribunal accepts the documented evidence of the applicant becoming an unlawful non-citizen on 19/6/12 when his visa was cancelled as he was no longer in a relationship with the primary visa holder.

30. The Tribunal accepts the documented and oral evidence of the applicant that he did not make any approach to any Government visa body from the 19/6/12 attempting to resolve his visa issues and to allow him to remain in Australia lawfully.

31. The Tribunal accepts the documented and oral evidence of the applicant and his wife that they became partners in 2011, and married in 2016, with a daughter born in 2012 and another in 2016.

32. The Tribunal accepts the documented and oral evidence of the parties that the wife of the applicant asked him to deal with the visa issues, but financial pressures made it difficult for them to lodge a Partner Visa application.

33. The Tribunal notes the applicant, as an unlawful non-citizen, had no works rights in Australia, with the applicant advising that he did do some part-time work, with the Tribunal having no way to confirm this information, with him spending the rest of his time caring for the children, the home of the family and assisting with the care needs of his ill father-in-law.

34. The Tribunal notes the oral evidence of the applicant that she wanted to borrow funds to ensure the applicant could lodge a Partner Visa, with her as the sponsor, but the applicant, with a stated sense of male pride, not agreeing to this as he wanted to raise the required money himself.

35. The Tribunal notes the applicant, in approximately August 2017, at the suggestion of several friends, decided to go to Queensland and work for approximately 9 months, at a “farm” with the home of raising the money he required to lodge a Partner Visa.

36. The Tribunal accepts the documented and oral evidence of the applicant that he was arrested on 7/12/17 for a series of drug related offenses, and with the acknowledgement by authorities that he was an unlawful non-citizen, he was placed in a detention facility.

37. The Tribunal accepts the documented and oral evidence that the applicant was found guilty in January 2020 of the drug related offense, sentenced to a period of incarceration, with it understood that he had served this time as he had been in detention since December 2017.

38. The Tribunal accepts the documented evidence that the applicant has remained in a detention facility since 7 December 2017.

39. The Tribunal accepts the documented and oral evidence of the parties that the wife of the applicant sold the family home in Victoria in January 2020, and with her daughters moved to Queensland to be able to visit the applicant.

40. The Tribunal accepts the oral evidence of the parties that for long periods since the move of the wife and children of the applicant to Queensland, while closer to the applicant they have not been able to visit him to lockdown provisions of the detention facility due to COVD-19 management decisions.

41. The Tribunal accepts the documented and oral evidence of the applicant and his wife that their lengthy period apart has been very difficult for them and the children and they are desperate to spend 6 months together before the applicant leaves Australia to return to Vietnam.

42. The Tribunal notes the documented and oral evidence of the parties that this period of 6 months has been requested so as to allow family time to be spend for Christmas, the first day of school of the youngest child and the 10^th birthday on 11 May 2022 of the oldest child of the parties.

43. The Tribunal accepts the documented evidence that flight restrictions due to COVID-19 mean that direct flights from Brisbane to Vietnam are not available until April 2022.

44. In this case, cl 050.6 applies because of the potential for conditions to be set in the provision of a visa. 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: 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).

45. The Tribunal notes the documented and oral evidence of the applicant that he is willing to accept conditions of 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).

46. The Tribunal notes in relation to condition 8101, work, the oral evidence of the applicant that he did work part-time, as would fit in with the work schedule of his wife, the child care and household roles he undertook and the assistance he provided in the care needs of his ill father-in-law, that he would work part-time as available, with no work rights in place as he as an unlawful non-citizen, the applicant has demonstrated a disregard for Australian visa laws and conditions.

47. The Tribunal notes in relation to condition 8506, advise of change of address within 2 days, the applicant has demonstrated, by not advising authorities of his separation and divorce from his 1^st wife, this relationship allowing him to be in Australia, and that by being an unlawful non-citizen from 19/6/12 when his visa to be in Australia was cancelled, and by making no contact with Government visa authorities at any time until after his arrest for drug related matters, the applicant has demonstrated a disregard for Australia visa law and conditions. 

48. The Tribunal notes that in relation to condition 8564, must not engage in criminal activity, it is a result of the criminal activity undertaken by the applicant in the second half of 2017, his subsequent arrest, prosecution and finding of guilt, that the applicant in his most recent period of living in the community has demonstrated his inability to live his life according the laws of Australia, by knowingly and willingly being involved in an illegal activity for profit, no matter was his motivation for this profit was.

49. The Tribunal notes the oral evidence of the applicant and his wife that they acknowledge the history of the applicant, while he is extremely embarrassed and ashamed of his actions, and with to focus on the opportunity to be a family again, and by the action of booking a flight to leave Australia and declared intention to lodge a Partner visa application in the future they intend to do everything they can to be a family living together again in Australia.   

50. The Tribunal notes the oral evidence of the applicant and his wife that they are prepared to put forward a security is the bridging visa is approved with conditions.

51. 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.

52. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

53. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

54. 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

55. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Steven Griffiths
    Member