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

1. The issue in this case is whether Mr Tran would abide by the conditions of any Bridging visa granted to him.

   APPLICATION FOR REVIEW

2. 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).

3. 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.

4. 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.

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

   BACKGROUND

6. 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.

7. 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

8. 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.

9. 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]).

10. 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).

11. 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.

12. 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].

13. 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.

14. 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].

15. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

16. The Tribunal considered Mr Tran’s evidence when assessing whether he would abide by the conditions of a bridging visa.

17. Mr Tran told the Tribunal that since 2011 he had been in a long term relationship with his partner Ms Mai Huan Mai and that they have a child born on 21 October 2012. Mr Tran told the Tribunal he was listed on the birth certificate as the child’s father. The Tribunal noted it did not have a copy of the birth certificate to corroborate that evidence. Mr Tran said he had previously provided a copy to the department when he was held in detention in Melbourne. He said he wanted to spend time with his partner and daughter. They had not been able to visit him in detention but he spoke to them by telephone each day.

18. Mr Tran said he was unsure if his partner was working and he was unsure as to what rent she paid for the premises she and their daughter were living in. Mr Tran said he had an aunty who had indicated she was prepared to support him financially if he were to be granted a bridging visa.  He said his partner had lodged a protection visa application and she was on a bridging visa while she awaited the outcome of that application. She had lodged her application in 2015 but she had not as yet received a decision. When asked why they had not lodged a partner visa application, given his evidence it was a long standing relationship, Mr Tran said they had decided to pursue a protection visa for his partner as at the time he was on a valid visa.

19. Mr Tran said it was especially important he got to spend time with his daughter before he left Australia as he did not want her to feel the same issues of abandonment that he has had to deal with during his life. His parents had abandoned him when he was a child and the emotional consequences of that had been a marked feature of his life. He said the only family he had in Vietnam were his paternal grandparents.

20. Mr Tran said his daughter had started prep school this year and she was settling in well but she had a developmental delay in terms of her speech. Mr Tran said if he were to be granted a bridging visa he would be able to spend time with her and help her. He was worried that if she did not receive some assistance she may develop depression because of her speech problems. He said they had been told that she needed more social interaction and stimulation to help her gain confidence. He thought she had improved since she started school. While the Tribunal accepts the evidence of Mr Tran that he wishes to see and spend time with his daughter the Tribunal was not persuaded this would act as a sufficient deterrent in assessing whether he would comply with any visa conditions.

21. In this case, cl.050.6 applies. 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 – no work;

    ·     8401 – report as directed;

    ·     8505 – reside at specified address; and

    ·     8564 – must not engage in criminal conduct

22. The Tribunal considered Mr Tran’s circumstances. As previously noted Mr Tran was an unlawful not citizen from when Mr Tran’s bridging visa ceased on 10 April 2015. 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.

23. The Tribunal finds that Mr Tran has shown little regard for Australian law and has remained in Australia unlawfully for an extended period after the cessation of his visa. The Tribunal finds that Mr Tran has made no attempt to regularise his immigration status.

24. Mr Tran gave evidence at the hearing that he will abide by any Bridging visa granted to them. Mr Tran said that he was sorry for what he had done and he was aware of Australian immigration law. Mr Tran said with the support of his partner and aunty he would have accommodation and financial support.

25. The Tribunal is satisfied that Mr Tran was aware that he had remained in Australia unlawfully and that he actively sought to avoid contact with the Department so he could remain in Australia. Further, the Tribunal is satisfied that Mr Tran was aware that he did not have the right to work in Australia but obtained employment knowing this to be unlawful. Having regard to Mr Tran’s past conduct, the Tribunal is satisfied that he would again breach Australian law in the future if it suited his circumstances.

26. Based on the above including his previous disregard for the requirements of Australian law, the Tribunal is not satisfied that Mr Tran will abide by conditions 8101, 8401 and 8505.

27. Accordingly, having regard to Mr Tran’s past conduct and immigration histories, and for the reasons outlined above, the Tribunal does not accept that he will abide by the conditions of a Bridging visa if one is granted to him.

28. At the hearing Mr Tran indicated his partner would try to organise a security bond if needed. There is no information before the Tribunal as to a possible source of those funds. No supporting documentation has been provided to support that claim. Regardless, having regard to Mr Tran’s immigration history and his failure to comply with his previous visa, the Tribunal is not satisfied that the amount of security suggested by Mr Tran at the hearing of up to $15000  would provide sufficient incentive for him to abide by the conditions of any Bridging visa granted to them.

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

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

    DECISION

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

    Moira Brophy
    Member