Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180

Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 Review of: Application for judicial review: Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4308

File number(s): VID 759 of 2021

Judgment of: O'SULLIVAN J

Date of judgment: 8 March 2023

Catchwords: MIGRATION – application for judicial review of the Administrative Appeals Tribunal's (Tribunal) decision pursuant to s 476A of the Migration Act 1958 (Cth) (Act) – where the delegate refused the applicant's application for a Partner (Residence) (Class BS) Visa on the grounds the applicant did not pass the character test pursuant to s 501(6)(d)(i) of the Act – whether the Tribunal considered the exercise of its discretion in s 501(1) of the Act – whether the Tribunal asked itself the wrong question and applied the wrong test and thereby failed to exercise its jurisdiction – whether the error of law was material – application allowed PRACTICE AND PROCEDURE – application for leave to amend the originating application to add a third ground of review – whether the Tribunal failed to give proper, genuine and realistic consideration to the likelihood of the applicant engaging in further criminal or other serious conduct – leave refused

Legislation: Migration Act 1958 (Cth), ss 476A, 499(1), (2A), 501(1), (3A), (6)(d)(i), (7)(c), 501CA(4),(b)(ii) Refugees Convention Act 2012 (Nr)

Cases cited: Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240 Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539 Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 House v The King [1936] HCA 40; (1936) 55 CLR 499 Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179; (2021) 287 FCR 581 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW 20 by his Litigation Representative BFW20A [2020] FCAFC 121; (2020) 279 FCR 475 Norbis & Norbis [1986] HCA 17; (1986) 161 CLR 513 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Tohi v Minister for Immigration, Citizenship, Migration Services & Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, (2018) 263 FCR 531 WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209