Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs

In the case of Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm a delegate's refusal to grant Partner (Temporary) (Class UK) visas. The primary issue before the court was whether the AAT erred in failing to find a jurisdictional error by not considering certain evidence, specifically that the sponsor had persuaded the appellant not to have an abortion. The appellant argued that this evidence was relevant to the assessment of the relationship's commitment under the Migration Act 1958 (Cth) and should have been expressly considered and addressed in the AAT's reasons. The Minister contended that the evidence was not significant enough to warrant consideration.

The court found that issues could emerge during the course of a Tribunal hearing and that while the Tribunal was not required to put the appellant on notice of issues arising directly from the governing legislation, it must still consider relevant evidence under section 360 of the Act. The court held that the evidence concerning the abortion was relevant to the assessment of the relationship's commitment and should have been expressly considered by the AAT. The court noted that the Tribunal had referred to the initial infidelity in its consideration of the evidence but failed to address how the sponsor reconciled himself to the fact that the appellant had been unfaithful and decided to go through with the marriage. The court concluded that this omission was indicative of a failure to consider the evidence.

The appeal was allowed, and the decision of the Federal Circuit and Family Court of Australia (Division 2) was set aside. The matter was remitted to the AAT to be decided according to law. The Minister was ordered to pay 70% of the appellants' costs of the proceeding before the Federal Circuit and Family Court of Australia (Division 2) and 80% of the appellants' costs of the appeal. The name of the first respondent was amended to read "Minister for Immigration, Citizenship and Multicultural Affairs".