Nguyen and Minister for Immigration and Border Protection (Migration)

The applicant, Mr. Nam Duong Nguyen, sought review of a decision by the Minister for Immigration and Border Protection to refuse his Partner (subclass 309 and 100) Visa application. The dispute centred on whether Mr. Nguyen met the character requirements for the visa, given his criminal history and period as an unlawful non-citizen in Australia. The matter was heard by A. Nikolic Am Csc SM.

The court was required to determine if Mr. Nguyen satisfied the character test under section 501(6) of the Migration Act 1958 (Cth). This involved considering his criminal conviction for knowingly taking part in the cultivation of a commercial quantity of a prohibited plant, his subsequent period as an unlawful non-citizen, and any other relevant conduct or circumstances that might suggest he should be permitted to remain in Australia. The court also had to assess the risk of Mr. Nguyen re-offending and the weight to be given to his personal circumstances, such as his family ties in Australia.

The court affirmed the delegate's decision to refuse the visa. It reasoned that Mr. Nguyen's conduct in Australia was predominantly characterised by his time in prison and his status as an unlawful non-citizen. His serious criminal conviction and prolonged disregard for immigration laws were considered to outweigh any favourable conduct since his departure from Australia. The court applied the principles established in cases like *Akpata*, which emphasise Parliament's intent to exclude individuals with a history of serious criminal conduct or a significant risk of engaging in such conduct. The court found that the primary considerations of protecting the Australian community and meeting community expectations outweighed other factors, leading to the conclusion that Mr. Nguyen failed the character test.