Bui (Migration) - [2025] ARTA 1620

Bui (Migration) [2025] ARTA 1620 (18 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Thu Huyen Bui
Visa Applicant:  Mr Ngoc Chien Nguyen
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2216200

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 18 August 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 18 August 2025 at 4:33pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Special Return Criteria 5001 – previous Bridging visa cancelled – permanent exclusion – no waiver provision – genuine and continuing relationship – Australian citizen family – strong compassionate circumstances – visa cancelled on character grounds – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 198, 351, 501
Migration Regulations 1994 (Cth), Schedule 2, cl 309.226

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 7 September 2022 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 December 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 309.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet Special Return Criteria 5001.
The review applicant and the visa applicant appeared before the Tribunal on 28 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Special Return Criteria 5001 (SRC 5001) as required by cl 309.226 for the grant of the visa. Clause 309.226 requires that where an applicant has previously been in Australia, the applicant satisfies SRC 5001 and 5002.
The delegate’s decision records that the applicant has previously resided in Australia, departing on 23 November 2015. As such he must satisfy each of SRC 5001 and 5002 in order to meet the requirements of cl 309.226.
SRC 5001 provides that:
The applicant is not:
(a)a person who left Australia while the subject of a deportation order under:
(i)  section 200 of the Act; or
(ii)  section 55, 56 or 57 of the Act as in force on and after 19 December 1989 but before 1 September 1994; or
(iii)  section 12, 13 or 14 of the Act as in force before 19 December 1989; or
(b)  a person whose visa has been cancelled under section 501 of the Act, as in force before 1 June 1999, wholly or partly because the Minister, having regard to the person's past criminal conduct, was satisfied that the person is not of good character; or
(c)  a person whose visa has been cancelled under section 501, 501A or 501B of the Act, if:
(i)   the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or
(ii) after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person; or
(d)  a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.
The delegate’s decision records that on 10 August 2015, the applicant’s Bridging Visa C was cancelled under s501(3A) of the Act and he was voluntarily removed from Australia under s 198 of the Act on 23 November 2015.
At hearing the applicant confirmed that his visa had been cancelled under s 501, that he did not make a request for revocation of the cancellation of the Bridging Visa C and that the Minister, acting personally, had not granted him another permanent visa.
In submissions dated 21 July 2025, the applicant’s representative noted that the primary reason for the refusal was the applicant’s ineligibility to be granted a visa, owing to a re-entry ban triggered by the cancellation of his previous visa under section 501(3A) of the Migration Act 1958. It was acknowledged that the legislative framework does not currently provide for a waiver of the exclusion period in such circumstances.
At hearing the applicant’s representative indicated the parties sought to have the Tribunal refer this matter to the Minister pursuant to s 351 of the Act, noting there were no other options for the family to be reunited in Australia.
The Tribunal finds that the applicant is a person whose visa was cancelled under section 501. As the cancellation was not revoked under subsection 501C(4) or 501CA(4) of the Act and the Minister has not, acting personally, granted a permanent visa to the applicant, the applicant cannot meet Special Return Criteria 5001.
As discussed with the applicant at hearing, there is no provision which would allow the Tribunal to waive the operation of Special Return Criteria 5001 and the period of exclusion appears to be indefinite. It follows that the applicant cannot satisfy the requirements of cl 309.226 and the decision under review must be affirmed.
Ministerial Intervention
As noted above, the Tribunal has been asked to refer the matter to the Minister under s 351 of the Act. The basis of this is that the visa applicant is the long-term spouse of the sponsor, who is raising two children in Australia on her own, one of whom is the biological daughter of the applicant. The family remains intact almost ten years after the applicant’s removal from Australia but their circumstances are very difficult due to the applicant’s permanent exclusion from Australia and his ongoing separation from his wife and children, all of whom are Australian citizens.
There is a very significant amount of evidence about the relationship between the parties which indicates that it is genuine, continuing and of long standing. The parties met in 2009 and have been in a committed relationship since 2013. Their relationship continued after the applicant’s removal from Australia in 2015, their daughter was born in 2016 and they married in Vietnam in 2017.
The evidence before the Tribunal indicates that the applicant maintains a close relationship with both the sponsor and their daughter as well as playing a parental role in respect of the sponsor’s son. Both children have spent significant periods of time living with the applicant and his family in Vietnam but are now of school age and live with their mother in Australia where they attend school. Both the sponsor and the applicant gave evidence to the Tribunal about the significant hardship their ongoing separation places on the sponsor and her children and the Tribunal accepts that to be the case.
The Tribunal accepts that the applicant was a young man at the time of his offending in 2014, that he is sincerely remorseful and that he has been trying to rebuild his life and reunite with his family in Australia. He remains in daily contact with his wife and children and they visit as frequently as possible so that the children can maintain their relationship with the applicant. Having regard to the circumstances of the applicant, the Tribunal considers this case raises strong compassionate circumstances that if not recognised, will cause continuing hardship to the sponsor and the children.
However the Ministerial guidelines relating to the Minister’s discretionary power under section 351 state that it is inappropriate for the Minister to consider cases not meeting the referral guidelines. Cases identified as not meeting the referral guidelines include cases where an applicant’s visa has been cancelled on character grounds and the Guidelines state that such cases will be finalised by the Department without referral to the Minister.[1]
[1] Policy Guidelines, Ministerial Powers Instructions “Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)”
In circumstances in which the Ministerial guidelines state that it is inappropriate to consider cases where the applicant’s visa has been cancelled on character grounds, the Tribunal considers it should not refer the matter to the Minister. It remains open to the applicant to seek the Minister’s intervention directly.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.
Date(s) of hearing:  29 July 2025
Representative for the Applicant:           Ms Jennifer Nguyen (MARN: 2117717)
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5      Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…