Nguyen (Migration) - [2025] ARTA 2121

NGUYEN (MIGRATION) [2025] ARTA 2121 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thi Ngoc Xuyen Nguyen
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2449725

Tribunal: Senior MemberM Bourke
Place:Melbourne
Date: 1 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.

Statement made on 01 July 2025 at 1:53pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – genuine and continuing relationship – home site visit report without interpreters – joint home purchase – shared household expenses – shared care and support of the sponsor’s children – family recognition of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359, 375
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, which in this case is the applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the applicant had provided evidence and information to demonstrate that she was the spouse of the sponsoring partner.
The applicant applied to the Tribunal for review of the Department’s decision. The Tribunal (differently constituted, and at the time the Administrative Appeals Tribunal) in a decision dated 4 August 2017 affirmed the Department’s decision.
The Federal Circuit and Family Court of Australia (Division 2) in a judgement dated 21 April 2022 granted the application of the Minister in confirming that the claim of privilege attached to documents of the Department should be upheld. These are related to redacted copies of documents (unredacted copies of which had been provided to the Court).
The applicant then applied to the Federal Court of Australia and the matter was remitted by consent order dated 26 November 2024 back to the Tribunal on the basis that the Minister concedes that in relying on the delegate’s interpretation of the site visit report, rather than forming…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2025] ARTA 2121
Case: [2025] ARTA 2121
Decision Date: 1 July 2025

CaseChat Overview and Summary

In the case of Nguyen (Migration), the applicant, Nguyen, challenged the Department's decision to refuse his application for a Partner (Temporary) (Class UK) visa under subclass 820. The applicant sought judicial review of the decision, arguing that the decision-maker failed to properly consider all relevant evidence and criteria for the visa. The Federal Court was tasked with reviewing the decision and determining whether it was legally sound.

The key legal issues before the court were whether the decision-maker properly considered all relevant evidence and criteria, and whether the decision was legally sound. The court was required to examine the evidence and arguments presented by both parties to determine whether the decision-maker had failed to consider relevant evidence or had otherwise erred in law.

The court found that the decision-maker had failed to properly consider all relevant evidence and criteria. The court found that the decision-maker had not adequately considered evidence of the applicant's financial contributions to the relationship, joint ownership of property, shared household expenses, and the couple's commitment to each other. The court also found that the decision-maker had not properly considered evidence of the family's recognition of the relationship. The court found that the decision-maker had erred in law by failing to properly consider all relevant evidence and criteria.

The court set aside the decision under review and remitted the matter to the Department for reconsideration. The court found that the decision-maker had failed to properly consider all relevant evidence and criteria, and that the decision was therefore legally unsound. The court ordered that the matter be remitted to the Department for reconsideration in accordance with the order that the applicant meets the relevant criteria for a Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCENon-disclosure certificates The Department issued four nondisclosure certificates on the Department file. The Department issued a certificate under s.376 of the Act dated 7 February 2024. This certificate had the name of the delegate but did not have the signature of the delegate on the certificate. The certificate had the name of the delegate beside the words “Delegate’s signature”. The name of the delegate is not an electronic signature and the certificate had not been validly signed. The Tribunal is satisfied that this certificate is not valid. The Department issued a certificate under s.375A of the Act recording that it applied to “[documents OR information] in CLF 2014/91424 of file number CLD 2025/5715756”. The Tribunal wrote to the Department advising that in its view this certificate was not valid. In response to a query from the Department the Tribunal advised that the certificate did not record the document or documents to which the certificate applies. The Tribunal did not receive notification that this certificate was revoked. The Tribunal notes that this certificate was not signed and beside the words “Delegate’s signature” is the name of the delegate and the words “Digitally signed”. The Tribunal is not satisfied that this certificate is signed. Further the Tribunal is not satisfied that a certificate that does not identify the documents or information to which it applies, and purports to apply to an entire Department file is not valid. The Tribunal subsequently received a certificate issued by the Department under s.375A of the Act dated 28 May 2025. This certificate recorded that it applied to the document CLD 2025/5715756 of file number CLD 2014/91424. The certificate recorded that disclosure of these documents would be contrary to the public interest and would disclose lawful methods for preventing, detecting and investigating breaches or invasions of the law which would, or be likely to, prejudice the effectiveness of those methods. The document CLD 2025/5715756 appears to the Tribunal to be an entire file of 273 pages, and includes hundreds of folios of information provided by the applicant. The Tribunal is not satisfied that the documents to which the certificate purports to apply includes information that would disclose lawful methods for preventing, detecting and investigating breaches or invasions of the law. Further the certificate dated 28 May 2025 is not signed and under the words “Delegate’s signature” has the name of the delegate and the words “Digitally signed”. The Tribunal is not satisfied that this certificate is signed. For the above reasons the Tribunal is not satisfied that this certificate is valid. The Department issued a certificate dated 23 January 2025 under s.375A of the Act which was signed and dated and recorded the reasons why disclosure of the documents to which the certificate applied would be contrary to the public interest, namely that the information is of lawful methods for preventing, detecting and investigating breaches or invasions of the law, and disclosure would, or be likely to, prejudice the effectiveness of those methods.

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.Dates of hearing(s): 30 June 2025 Representative for the Applicant: Ms Karyn AndersonATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

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