Bui and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 217

Bui and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 217 (13 March 2025)

Applicant/s:  Son Huu BUI 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/11075

Tribunal:  Senior Member A Mercer    

Place:Melbourne

Date:13 March 2025

Decision:Pursuant to section 105(c) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and substitutes it with a decision that the cancellation of the Applicant’s Class BS subclass 801 Partner visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

..........[SGD]................................................

Senior Member A Mercer

Catchwords

MIGRATION – refusal to revoke cancellation of the Applicant’s permanent subclass 801 (Partner) visa – drug offence – Direction 110 – Protection of the Australian community – interests of minor child – decision set aside – cancellation of visa revoked

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Drugs, Poisons and Controlled Substances Act 1991 (Vic)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Sentencing Act 1991 (Vic)

Cases

Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Minister for Home Affairs v HSKJ [2018] FCAFC 217

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

BHL19 v Cth of Australia (No. 2) [2022] FCA 313

AJL20 v Cth of Australia [2020] FCA 1305

Doan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 52

Chu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 99

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Jama v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 148

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Secondary Materials

Direction 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a decision under s 501CA

Statement of Reasons

  1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

  2. This matter concerns an application for review of a decision by a delegate of the Respondent to refuse to revoke the cancellation of the Applicant’s Class BS subclass 801 Partner visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

  3. In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another…

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Details
AGLC
Bui and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 217
Case
[2025] ARTA 217
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal involved a decision by the Minister for Immigration and Multicultural Affairs to refuse the revocation of the cancellation of the Applicant's permanent subclass 801 visa. The Applicant, born in Vietnam, had been granted a permanent Partner visa based on his marriage to an Australian permanent resident, Thoai Ngoc Chau Phan. The dispute centred on the refusal to revoke the cancellation of his visa due to a drug offence, with the Tribunal required to consider whether the cancellation should be revoked based on the interests of minor children in Australia and other relevant factors.

The primary legal issues the court was required to decide were whether the Applicant passed the character test, and if not, whether there was another reason to revoke the visa cancellation. The Tribunal had to consider the best interests of minor children in Australia, the strength of ties to Australia, and the protection of the Australian community from criminal or other serious conduct. The court was also required to assess the nature and seriousness of the Applicant's conduct and its implications for the community.

In reaching its decision, the Tribunal noted that the Applicant had played a significant parental role in the life of Ms Phan's son, who has Down syndrome and heart problems. The Tribunal recognised the importance of maintaining contact between the Applicant and his step-son but also considered the absence of meaningful contact due to the Applicant's incarceration. The Tribunal concluded that, despite the Applicant's significant role in his step-son's life, the best interests of the child were best served by considering the current care arrangements and the potential risks associated with the Applicant's criminal conduct. The Tribunal found that the interests of the minor child weighed in favour of maintaining the visa cancellation.

The Tribunal also considered the protection of the Australian community and the nature and seriousness of the Applicant's conduct, which involved a significant drug offence. The Tribunal concluded that the decision to maintain the visa cancellation was in line with the primary considerations outlined in Direction 110. The Tribunal ultimately found that the decision to refuse the revocation of the visa cancellation was correct and preferable.

The final orders of the Tribunal set aside the decision of the Minister to refuse the revocation of the cancellation of the Applicant's visa, and ordered the revocation of the cancellation of the Applicant’s permanent subclass 801 visa.

Orders

Orders of the court

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Background

Background to the litigation

In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked. BACKGROUND The Applicant was born in Vietnam in January 1979 and is now aged 46. The Applicant has three siblings, being an older sister, a younger sister and a younger brother. The Applicant’s older sister is an Australian citizen and resides in Melbourne, while his younger sister and younger brother both reside in Vietnam. The Applicant’s parents also reside in Vietnam.[1] [1] HB, Applicant’s Statement of Facts, Issues and Contentions (SOFIC), document 1 at page HB1. The Applicant completed secondary and tertiary education in Vietnam. He obtained a Bachelor of Civil/Construction Engineering and worked in this field for several employers in Vietnam for several years until coming to Australia to study in May 2013 as the holder of a subclass 573 Student visa. In Australia, he completed a Diploma of Business at Southern Cross Institute, a Diploma of Management at Cambridge International College and a Bachelor degree of Business Management at CIC Higher Education.[2][2] Ibid, pages HB2-3. The Applicant was married in Vietnam to his first wife in November 2006. He had two children with her, a daughter born in December 2007 (currently aged 17) and a son born in August 2011 (currently aged 13). The Applicant and his first wife were divorced in July 2015 in Vietnam, and she and the children continue to reside in Vietnam. The Applicant has telephone contact with his children and pays child support to his first wife for them via a private agreement.[3][3] HB, Applicant’s SOFIC, document 1, page HB3. The Applicant married his present wife, Thoai Ngoc Chau Phan (born June 1981) in Australia on 8 June 2019. The Applicant applied for a subclass 820 provisional Partner visa on the basis of his marriage, in or about 9 September 2019. On 12 May 2023, he was granted a Class BS subclass 801 permanent Partner visa.[4][4] Ibid, pages HB3-4. Ms Phan was married previously and has two children from that marriage: a daughter born in July 2003 (currently 21), and a daughter born in May 2006 (currently 18). In addition, she has a son born in June 2018 (currently 6) from a relationship she had between the end of her first marriage and her relationship with the Applicant. Ms Phan is an Australian permanent resident and her children are Australian citizens. Ms Phan was divorced from her first husband in November 2017. Her daughters maintain contact with both parents. Ms Phan’s son does not have contact with his biological father. The Applicant is Ms Phan’s son’s step-father and has a close relationship with him as he moved into Ms Phan’s house shortly after the birth of her son and remained part of the household until his arrest in June 2023. The Applicant’s step-son was born with Down syndrome and was also diagnosed with heart problems in or about May 2019. He underwent a heart operation in November 2019 at the Royal Children’s Hospital in Melbourne to repair his atrial septal defect. Due to her son’s conditions, Ms Phan did not work for most of the time after his birth and the Applicant was the main breadwinner for the family until his arrest. He also helped care for his step-son, partly to relieve his wife, and partly due to his strong bond with his step-son. Since the Applicant’s arrest, Ms Phan’s son and younger daughter have been living with Ms Phan’s younger sister and her three children, to relieve the pressure on Ms Phan. Her son also receives support from the National Disability Insurance Scheme (NDIS)[5].[5] Ibid, page HB4.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, the Tribunal considers that the majority of these factors weigh in favour of revoking the cancellation of the Applicant’s subclass 801 visa.Best interests of minor children in Australia affected by the decision Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination on whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Applicant’s step-son It is not disputed that the Applicant played a parental role in his step-son’s life from some time in early 2019 to the time that he was arrested in mid-2023. The Tribunal accepts that both the Applicant and his wife considered that it was not in the boy’s interest to visit the Applicant in jail, given his health issues and young age. It is further not disputed that the Applicant’s son has Down syndrome, a mild intellectual disability and has undergone two operations to repair heart defects. He is now aged 6 and has started school. Prior to the Applicant’s incarceration, his step-son lived at home with the Applicant, Ms Phan and his two half-sisters. Since approximately mid-2023, he has lived with his aunt, Ms Phan’s younger sister, together with his younger half-sister and Ms Phan’s sister’s three children aged 17, 15 and 11. The Applicant stated that he strongly wished to re-establish contact with his step-son and play a part in his life as his step-father, and to be able to provide his step-son with financial and emotional support. The Tribunal accepts that it is normally in the best interests of minor children to have ongoing contact with both their parents, where possible, and this has been recognised in Australian case law, such as Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. The Tribunal accepts that the Applicant’s step-son has never had an ongoing relationship with his biological father, and his only consistent father figure to date has been the Applicant from the time that he was an infant. However, it notes that the Applicant has not had contact with his step-son since approximately July 2023 and has essentially been in the care of his biological mother Ms Phan and subsequently with Ms Phan’s younger sister since the Applicant was arrested in mid-2023 and convicted and jailed in 2024. The Tribunal acknowledges that subparagraph 8.4(4)(a) of the Direction indicates that less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact). It further acknowledges that the Applicant has had a reasonably significant period of absence in his step-son’s life (approximately one and a half years at the time of the Tribunal’s decision) and the primary parental role for his step-son is currently played by Ms Phan’s sister (the Applicant’s step-son’s aunt).

Ratio Decidendi

Legal Principle Established

Having regard to the primary and other considerations set out in Direction 110, the correct or preferable decision was to affirm the decision under review. TRIBUNAL’S CONSIDERATION The Direction contains five primary considerations, which were:(1)protection of the Australian community from criminal or other serious conduct;(2)whether the conduct engaged in constituted family violence;(3)the strength, nature and duration of ties to Australia;(4)the best interests of minor children in Australia;(5)expectations of the Australian community.[27][27] Direction 110, cl 8. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.The protection of the Australian community The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[28] [28] Direction 110, cl 8.1(1). The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[29][29] Ibid. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[30][30] Ibid, cl 8.1(2).Nature and seriousness of the conduct The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[31]Criminal offending[31] Ibid, cl 8.1.1(1)(a). The Applicant’s conviction is set out above at paragraph 11 above. Sentencing remarks, 2 May 2024[32][32] HB, G documents, G4, pages HB198 – 203. His Honour Justice Chettle found that the Applicant had been involved in crop sitting at a rural property in Victoria that ‘had been set up as an elaborate hydroponic cannabis growing venture, with plants in 10 rooms of the house totalling 307 in number with a weight of 245.86 kilograms.’ Chettle J noted that this was significantly higher than a commercial quantity, which was 25 kilograms in weight or 100 plants. Chettle J acknowledged that upon his arrest, the Applicant cooperated with the police and made full admissions which indicated that he was a crop sitter who was paid $700 per week and was to be paid a further anticipated $7,000 on the harvesting of the crop. Chettle J accepted that the Applicant was not a principal in the scheme and his role was to look after the plants as they grew. Chettle J described the Applicant’s relationship with his Australian wife Ms Phan as ‘complex and dysfunctional’ but recognised that the Applicant was a father figure for Ms Phan’s son, who was an infant when her relationship with the Applicant began, and who had heart issues, Down syndrome and a mild intellectual disability.