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

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).
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.
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
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.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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) [2017] AATA 2919
Case: [2017] AATA 2919
Decision Date: 21 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by Mr. Nguyen. Mr. Nguyen had arrived in Australia on a student visa, which was subsequently cancelled due to his failure to enrol in a course, thereby breaching his visa conditions. He had also been working in Australia and was detained under section 198 of the Migration Act 1958 (Cth) following an incident where he was found at a property allegedly used for growing cannabis. His initial application for a Bridging E visa was refused, remitted for reconsideration, and then refused again, leading to the current review.

The primary legal issue before the Tribunal was whether Mr. Nguyen would abide by any conditions imposed on a Bridging E visa, as required by clause 050.223 of the Migration Regulations 1994 (Cth). This clause mandates that the Tribunal must be satisfied that the applicant will comply with visa conditions. In assessing this, the Tribunal was required to consider the applicant's likely future conduct, taking into account relevant factors such as his past immigration history, the significance and wilfulness of any breaches, the presence of mitigating circumstances, and any evidence of contrition.

The Tribunal reasoned that an applicant's past immigration history, including previous breaches of immigration laws and the circumstances surrounding those breaches, are critical considerations in determining their likelihood of complying with future visa conditions. The Tribunal referred to established case law, including *Applicant VAAN of 2001 v MIMA* and *Liu v MIAC*, which outline the principles for assessing compliance with visa conditions, noting that satisfaction of compliance is paramount and cannot be solely contingent on the imposition of a security bond. Despite the submission of documents relating to Mr. Nguyen's claimed relationship with his partner, the Tribunal found these did not alter its assessment of his immigration history or his likely future conduct regarding visa compliance.

Consequently, the Tribunal affirmed the decision not to grant Mr. Nguyen a Bridging E (Class WE) visa, concluding that it was not satisfied he would abide by the conditions that would be imposed.

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 EVIDENCE 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 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. 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]. 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. 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].

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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