Case Summary - Nguyen v Minister for Immigration [2023] FCA 180

The recent Federal Court case of Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) to refuse the applicant’s application for a Partner (Residence) (Class BS) Visa on the grounds that the applicant did not pass the character test. The Federal Court found that the Tribunal failed to exercise its discretion in s 501(1) of the Act and asked itself the wrong question and applied the wrong test, thereby failing to exercise its jurisdiction. The court allowed the application, and the tribunal's decision was set aside. The application was remitted to the Tribunal for determination according to law.

The applicant, a Vietnamese citizen, arrived in Australia in 2010 on a Student Visa and applied for a Partner Visa in 2012, which was granted in 2014 after he married an Australian citizen. However, he was convicted of two offences in 2018 and 2020 and received non-custodial sentences. In 2021, the Minister's delegate refused his Permanent Visa application on the grounds that he did not pass the character test. The applicant applied to the Tribunal for a review of the decision, that was affirmed by Tribunal on 22 November 2021.

The court considered three issues in this matter, namely whether the Tribunal committed an error of law by misconstruing or failing to perform its statutory task set by s 501(1) of the Act, whether the Tribunal committed an error of law by asking itself the wrong question and/or applying the wrong test such that it failed to exercise its jurisdiction, and whether the Tribunal's error of law was material so as to amount to jurisdictional error. The court found that the Tribunal misconstrued its statutory task by not considering whether the applicant satisfied the character test in s 501(6)(a) of the Act and only considering s 501(6)(d)(i). The court also found that the Tribunal asked itself the wrong question and failed to exercise its jurisdiction by not considering whether the applicant passed the character test, as required by s 501(1) of the Act. The court found that the errors of law were material and amounted to jurisdictional error, and therefore, the application for review was allowed.

The case concerned the applicant's two drug-related convictions in 2018 and 2020, for which he received non-custodial sentences. The Tribunal considered s 501(6)(d)(i) of the Act, which allows a finding that a person fails the character test if further criminal offending was likely to occur, and the ongoing risk of the applicant engaging in such conduct in the future was more than minimal or remote. The Tribunal found that the most credible explanation for the applicant's motivation for his conduct leading to his first conviction was financial gain. Although the applicant submitted that family support and stability of employment would deter him from re-offending, the Tribunal concluded that the risk of the applicant re-offending could not be considered minimal or remote based on the applicant's diminished remorse, the closeness in time of the two drug-related offences, and concerns regarding his judgment in relation to his association with individuals and drug-related activity. Based on this, the Tribunal found that the applicant did not pass the character test. The Tribunal then considered the exercise of the discretion in s 501(1) of the Act to refuse to grant the applicant a Permanent Visa, and referred to the Primary Considerations set out in paragraph 8 of Direction.

Furthermore, the court found that the Tribunal applied the wrong test in considering whether the applicant satisfied the character test. The Tribunal focused solely on s 501(6)(d)(i) and whether there was an ongoing risk of the applicant engaging in further criminal conduct, rather than considering whether the applicant as a whole passed the character test under s 501(6)(a). The court held that the Tribunal's error in failing to consider s 501(6)(a) and asking itself the wrong question was a jurisdictional error.

The court then turned to the issue of whether the Tribunal's error of law was material so as to amount to jurisdictional error. The court found that the Tribunal's failure to consider whether the applicant passed the character test under s 501(6)(a) was material, as it prevented the Tribunal from considering all relevant considerations and exercising its discretion under s 501(1) of the Act. The court held that the Tribunal's error of law was material and amounted to jurisdictional error.

Therefore, the court allowed the application for judicial review, set aside the decision of the Tribunal, and remitted the matter to the Tribunal for determination according to law.

However, the applicant also sought leave to amend the originating application to add a third ground of review, which was refused by the court. The third ground of review alleged that the Tribunal failed to take into account relevant considerations and failed to provide adequate reasons for its decision. The court found that the applicant had not demonstrated that the proposed amendment would have a reasonable prospect of success or that it was necessary in the interests of justice to allow the amendment.

In conclusion, the decision in Nyugen case highlights the importance of the Tribunal properly considering all relevant considerations and exercising its discretion under s 501(1) of the Migration Act 1958. The court found that the Tribunal committed a jurisdictional error by failing to consider whether the applicant passed the character test under s 501(6)(a) of the Act and by applying the wrong test. The court's decision emphasizes the need for decision-makers to properly consider all relevant legal provisions and apply the correct legal test in order to exercise their jurisdiction and avoid jurisdictional error.