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

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).
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.
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.
The applicant was assisted by his registered migration agent, Ms. Nhi (Michelle) Huynh, of Luat Lawyers.
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.
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.
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
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).
The applicant must continue to satisfy this criterion…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2021] AATA 5510
Case: [2021] AATA 5510
Decision Date: 15 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by Mr Nguyen. The applicant sought to satisfy clause 050.212(2) of the Migration Regulations 1994, which requires the applicant to be making, or be the subject of, acceptable arrangements to depart Australia. The Tribunal also considered an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which the applicant did not meet the eligibility criteria for.

The primary legal issue before the Tribunal was whether the applicant continued to satisfy the criteria for a Bridging E visa at the time of the decision, specifically concerning acceptable arrangements to depart Australia. The Tribunal was required to assess the genuineness of the applicant's intentions and the arrangements made for his departure.

The Tribunal found that the applicant met the initial eligibility requirements for a Bridging E visa, including being an unlawful non-citizen and not being an eligible non-citizen of a kind specified in the regulations. The Tribunal also accepted evidence that the applicant had booked a flight to Vietnam for departure on 21 May 2022, satisfying the criterion of making acceptable arrangements to depart Australia at the time of application. However, the Tribunal ultimately affirmed the decision not to grant the visa, indicating that the applicant did not satisfy all necessary criteria at the time of the decision. The reasons for this final determination, particularly concerning the applicant's criminal conviction for knowingly and willingly being involved in an illegal activity for profit and the Tribunal's assessment of his likelihood to abide by visa conditions, were not fully elaborated in the provided text but were central to the outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEImmigration status of the applicant – cl.050.211 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). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 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. 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. Accordingly, the applicant meets cl 050.211(1). 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). Accordingly, the applicant meets cl 050.211(2). Therefore, the applicant meets cl 050.211.The grounds for seeking the visa – cl.050.212 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. 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 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]). 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. 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 Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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