Tran (Migration) - [2018] AATA 1037

Tran (Migration) [2018] AATA 1037 (23 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lien Nguyen Tran
CASE NUMBER:  1807339
DIBP REFERENCE(S):
MEMBER:Moira Brophy
DATE:23 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 23 March 2018 at 1:28pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Remained unlawful in the community – Criminal record in Australia – Poor immigration history – Previous disregard of Australian laws – Does not meet cl.050.223
LEGISLATION
Migration Act 1958, ss 73, 189, 269
Migration Regulations 1994, Schedule 2 cls 050.212, 050.223 Schedule 8 Conditions 8101, 8401, 8505
CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
STATEMENT OF DECISION AND REASONS
ISSUE

The issue in this case is whether Mr Tran would abide by the conditions of any Bridging visa granted to him.
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 applied for the visa on 14 March 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). Relevantly to this matter, the primary criteria include cl.050.223 which requires the Minister to be satisfied that if a bridging visa were granted the applicant would abide by any conditions imposed on it.
The decision to refuse to grant the visa was made on16 March 2017 on the basis that after consideration of the visa applicant’s immigration history and the support available to him if he were to be granted a bridging visa, the delegate was not satisfied the visa applicant would comply with any conditions imposed on him. The applicant appeared before the Tribunal on 22 March 2018 by video conference from Immigration Detention at Yongah Hill IDC to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
Mr Tran was born in Vietnam on 31 March 1985 and is a citizen of Vietnam. Mr Tran first came to Australia on 21 January 2010 after being granted a Student visa (Subclass 573). Mr Tran departed Australia on 9 April 2012 and re-entered on 21 April 2012. He lodged a further Student visa application (Subclass 572) on 17 December 2013, which was refused by the Department on 19 September…

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.

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Details

AGLC: Tran (Migration) [2018] AATA 1037
Case: [2018] AATA 1037
Decision Date: 23 March 2018

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by Mr Tran, a citizen of Vietnam. Mr Tran had been in Australia since 2010, with his last substantive visa application being refused in 2014. He subsequently became an unlawful non-citizen in April 2015. In September 2017, Mr Tran was remanded in custody for drug cultivation and was detained under section 189(1) of the Migration Act 1958 (Cth) upon his release, before being transferred to immigration detention. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were whether Mr Tran met the criteria for the grant of a Bridging E visa, specifically subclause 050.212(2) concerning acceptable arrangements to depart Australia, and clause 050.223, which requires the Tribunal to be satisfied that the applicant will abide by any conditions imposed on the visa.

In relation to subclause 050.212(2), the Tribunal was satisfied that Mr Tran was making acceptable arrangements to depart Australia, accepting that his partner had purchased a one-way ticket to Vietnam and despite some initial concerns about the validity of his passport. However, when considering clause 050.223, the Tribunal found that Mr Tran did not meet the criteria. The Tribunal reasoned that relevant considerations for assessing an applicant's likely conduct included their past immigration history, previous breaches of immigration laws, the significance and wilfulness of those breaches, and any contrition shown. Given Mr Tran's criminal record for drug cultivation and his prolonged period of unlawful status in Australia, the Tribunal concluded that he had demonstrated a disregard for Australian laws and was unlikely to abide by the conditions of a bridging visa.

Consequently, the Tribunal affirmed the decision not to grant Mr Tran a Bridging E (Class WE) visa, as he failed to satisfy clause 050.223.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND Mr Tran was born in Vietnam on 31 March 1985 and is a citizen of Vietnam. Mr Tran first came to Australia on 21 January 2010 after being granted a Student visa (Subclass 573). Mr Tran departed Australia on 9 April 2012 and re-entered on 21 April 2012. He lodged a further Student visa application (Subclass 572) on 17 December 2013, which was refused by the Department on 19 September 2014. He sought review of that decision at the Migration Review Tribunal and on 13 March 2015 the Tribunal found it did not have jurisdiction to consider the application. Mr Tran’s associated bridging visa ceased on 10 April 2015 and he became an unlawful non-citizen the following day. On 28 September 2017 Mr Tran was remanded in custody for the cultivation of drugs. He was released from Fulham Correctional Centre on 30 October 2017 and was detained under section 189(1). He was transferred to Yongah Hill Immigration Detention Centre on 21 November 2017.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Tran does not have any ongoing immigration application. He is not subject to any reviews and no claims have been made in relation to his intentions with regard to applying for any substantive visa. He has provided a copy of his ticket for travel and has indicated he intends to depart Australia on 17 April 2018. 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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides 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 Mr Tran’s partner has purchased a one way ticket to Vietnam. There was a copy of his passport in the file (folio 16) that indicated the date of expiry was 30 September 2019. At the time of the interview with an officer of the department Mr Tran said his passport had been lost but he had a copy of it which was used to purchase his ticket. At the time of hearing it was put to Mr Tran that the departmental records indicated he did not hold a valid visa and he submitted that was not correct and that he still held a valid passport. He told the Tribunal he had lost his passport but his partner had since found his original document and he had provided a copy to the department. While the Tribunal had some concerns as to whether that was the case, on balance and without any evidence to corroborate the departmental note he did not hold a valid travel document, the Tribunal is satisfied, for the purposes of this review, that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant meets cl.050.212(2).

Evidence

Evidence Before The Court

On 28 September 2017 Mr Tran was remanded in custody for the cultivation of drugs. He was released from Fulham Correctional Centre on 30 October 2017 and was detained under section 189(1). He was transferred to Yongah Hill Immigration Detention Centre on 21 November 2017.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Tran does not have any ongoing immigration application. He is not subject to any reviews and no claims have been made in relation to his intentions with regard to applying for any substantive visa. He has provided a copy of his ticket for travel and has indicated he intends to depart Australia on 17 April 2018. 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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides 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 Mr Tran’s partner has purchased a one way ticket to Vietnam. There was a copy of his passport in the file (folio 16) that indicated the date of expiry was 30 September 2019. At the time of the interview with an officer of the department Mr Tran said his passport had been lost but he had a copy of it which was used to purchase his ticket. At the time of hearing it was put to Mr Tran that the departmental records indicated he did not hold a valid visa and he submitted that was not correct and that he still held a valid passport. He told the Tribunal he had lost his passport but his partner had since found his original document and he had provided a copy to the department. While the Tribunal had some concerns as to whether that was the case, on balance and without any evidence to corroborate the departmental note he did not hold a valid travel document, the Tribunal is satisfied, for the purposes of this review, that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant meets cl.050.212(2). 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].

Decision

Reasons for decision

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa. DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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