Nguyen (Migration)

[2017] AATA 2919

Nguyen (Migration) [2017] AATA 2919 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phi Hoang Nguyen

CASE NUMBER:  1731453

DIBP REFERENCE(S):  CLF2017/107862

MEMBER:Nicole Burns

DATE:21 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 December 2017 at 11:24am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 – Arrived on a student visa – Failed to enrol in a course – Breached visa conditions – Been working in Australia – Detained – Poor immigration history

LEGISLATION

Migration Act 1958, ss 73, 198, 269
Migration Regulations 1994, Schedule 2 cls 051.211, 050.223 Schedule 8 Conditions 8101, 8401, 8505, 8564

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
Tennakoon v MIMIA [2001] FCA 615

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).

2. The applicant – a 22 year old national of Vietnam - applied for the visa on 8 November 2017. 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). Relevantly to this matter, the primary criteria include cl.050.223.

3. An initial decision to refuse to grant the visa was made on 13 November 2017 on the basis that the delegate was not satisfied the applicant met time of application criteria with respect to the grounds for seeking the visa.  The applicant sought a review of that decision with the Tribunal[1] (differently constituted) and the matter was remitted for reconsideration on 28 November 2017 on the basis that the applicant had applied for a Partner visa.  On 11 December 2017 a further decision to refuse to grant the visa was made on the basis that the applicant did not meet cl.050.223 because the delegate was not satisfied that the applicant would abide by conditions to be imposed on the visa.

   [1] AAT No. 1728305

4. The applicant appeared before the Tribunal on 18 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the Tribunal hearing the applicant confirmed his immigration history as set out in the delegate’s decision record as follows: he first came to Australia on 13 August 2013 on a student (Subclass 573) visa which was cancelled on 14 November 2016 because he was not enrolled in a course in breach of a relevant visa condition. On 29 October 2017 the applicant was located by Victorian police at a property in North Balwyn allegedly used to grow cannabis. The applicant was not charged but was detained under s198 of the Act at Maribyrnong Immigration Detention Centre. The applicant applied for the Bridging E (Class WE) visa on 8 November 2017 which was refused on 13 November 2017 and then remitted by a differently constituted Tribunal on 28 November 2017 for reconsideration. A further decision to refuse the Bridging E (Class WE) visa application was made on 11 December 2017, the subject of this review.

   Whether the applicant will abide by conditions - cl.050.223

8. 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.

9. 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].

10. 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.

11. 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].

12. In this case there are no prescribed mandatory conditions.  The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 – The holder must not engage in work in Australia.

    ·8401 – The holder must report (a) at a time or times and (b) at a place specified by the Minister for the purpose.

    ·8505 – The holder must continue to live at the address specified by the holder before grant of the visa.

    ·8564 – The holder must not engage in criminal conduct.

13. The applicant said at hearing that he would comply with the conditions of the visa if granted.  The Tribunal discussed with the applicant the condition of ‘no work’: 8101.  He said he would not work if the visa was granted, would stay at his partner’s mother’s house in Queensland, and that his partner – who currently works full time at a restaurant at a casino in Brisbane – would help him out financially as well as his parents in Vietnam.   However, having regard to the applicant’s past conduct including his poor immigration history, the Tribunal does not consider the applicant will comply with this condition (and others), for the reasons that follow. 

14. The applicant gave evidence to the Tribunal that he came to Australia in August 2013 and studied an English course however thereafter he has worked: on farms, and as a cleaner and handyman.  He worked up until he was taken into immigration detention at the end of October this year.  He acknowledged he did so following the cancellation of his student visa on 14 November 2016 (and that he had not been enrolled in a course since 19 October 2015).  He made no efforts to contact the Department to regularise his immigration status, noting at hearing that at the time he did not know what to do and did not have enough money to pay a migration agent to assist him.  In his written submission to the Tribunal the representative argues that at the time the applicant was intercepted (by police) he was not aware of his unlawful status but is now clearly aware he was doing the wrong thing.  However the applicant told the Tribunal when asked that he was aware when working that he did not have the relevant visa with work rights.  In the Tribunal’s view, these matters establish a poor history of past compliance with Australian law, which raises serious concerns about the applicant’s likely compliance with conditions imposed on his bridging visa. 

15. The applicant told the Tribunal he would not work if the visa was granted and that he would stay at his partner’s mother’s house in Queensland with his partner and her brother.  His partner’s mother works as a nail technician and his partner’s brother is still at school.  The applicant said his partner’s mother pays rent and he would contribute but was not sure how much, noting they have not talked about it.  However his oral evidence in this regard is inconsistent with what is stated in the representative’s written submission to the Tribunal that the applicant’s partner’s parents own the property and therefore his partner is not required to pay rent, which casts doubt on his claims in this respect. 

16. The applicant also said his parents in Vietnam – who operate an interior design equipment business – will also assist him financially.  He said recently, when he decided to apply for a Partner visa, he called his parents and asked for money and they sent him AUD15,000.  He said after paying AUD10,000 for his lawyer’s fees and the application fee, he has AUD5,000 remaining for living expenses once released from detention.  If he needs more, he said he will call his family.   Apart from his assertions, he has not provided any evidence from his family that they are able and willing to support him financially (or that they have transferred him AUD15,000 recently).  As well, the Tribunal notes that in the past the applicant has claimed the reasons he was unable to continue studying and why he did not obtain a migration agent was due to financial problems, among other things.   

17. As mentioned, the applicant claims that his partner will financially support him if he is released from detention and he will live with her, her mother and her younger brother in Brisbane.  At hearing the Tribunal telephoned the applicant’s partner in an attempt to verify these arrangements, however she did not answer.  The delegate also indicated in the decision record that they have been unable to contact the applicant’s partner “on numerous occasions” to confirm the alleged support.  At hearing (and in the representative’s written submission) the applicant explained that is because his partner works late (he then said from 9am to 10pm) and cannot use her mobile phone at work.  However this does not explain why she did not contact the Department during a lunch break, for example.  After the hearing the applicant provided to the Tribunal a statutory declaration dated 19 December 2017 from his partner in which she confirms they have been in a relationship since the start of 2015, that they will live together with her family after his release, and that she is supporting him financially, which the Tribunal has had regard to.  However it does not overcome the Tribunal’s concerns it has with the applicant’s case for the reasons set out above and the Tribunal gives it little weight. 

18. Given these considerations, the Tribunal is of the view that the applicant may resume working in breach of a future ‘no work’ visa condition that may be imposed. It is also not satisfied that he would abide by the conditions requiring him to report to the Department and notify of a change of address.

19. Having regard to the totality of the evidence before it, the Tribunal is not satisfied that the applicant would comply with the above conditions of his bridging visa.  

20. The Tribunal notes at hearing the applicant said he was located by Victoria police at a house in North Balwyn on 29 October 2017 where cannabis crops were found.  He said he had gone there to clean – asked by the tenants who were known to him – but he did not know about the cannabis crops.  No charges were laid and the Tribunal is therefore willing to accept his claims in this regard.  

21. Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted without the added incentive of a security. In accordance with the approach set down in in Tennakoon v MIMIA [2001] FCA 615 (Gray J) and Applicant VAAN of 2001 v MIMA [2002] FCA 197 (Finkelstein J), the Tribunal has therefore proceeded to consider whether the conditions would be complied with if a security is taken.

22. In the present case there is not a decision made under s.269 of the Act before the Tribunal to review and therefore the Tribunal does not have the power to require a security pursuant to s.269 of the Act. Nonetheless, the Tribunal has considered whether or not it considers if the applicant will comply with conditions, should a security be required of a particular amount. Having regard to its concerns as set out earlier, particularly in relation to the applicant’s poor immigration history, the Tribunal considers that no amount of security would ensure the applicant’s compliance with the conditions which would be imposed on his visa.

23. Having regard to the above, 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.

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

25. 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.

    Other matters:-

26. The Tribunal notes the representative has provided documents in support of the applicant’s claimed relationship with his partner, such as photographs and copies of flight itineraries evidencing their visits to one another.  However the Tribunal is not making a finding in respect of their relationship and these documents do not alter its facts and findings above in respect of whether or not the applicant would abide by future Bridging E (Class WE) visa conditions. 

    DECISION

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

    Nicole Burns
    Member