Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 953
•19 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 953
File number(s): SYG 845 of 2020 Judgment of: JUDGE EGAN Date of judgment: 19 June 2025 Catchwords: MIGRATION – Whether the Tribunal erred in failing to address and make findings in respect of each identified possible contravention of a provision of the Act as set out in a Notice of Intention to Consider Cancellation of a visa – no jurisdictional error established – application dismissed. Legislation: MigrationAct 1958 (Cth) ss. 101, 102, 103, 104, 105, 106, 107, 107A, 108, 109) Cases cited: Kang v Minister Immigration and Citizenship [2013] FCA 711
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: General Number of paragraphs: 22 Date of hearing: 18 June 2025 Place: Sydney Counsel for the Applicant: Ms M Yu Solicitor for the Applicant: Mr M Cai (Challenge Legal) Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Ms T Copping (Sparke Helmore) ORDERS
SYG 845 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HONG AN NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship.”
2.The name of the second respondent be amended to “Administrative Review Tribunal.”
3.The Amended Application filed on 6 October 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Vietnam who was granted a Subclass (155) (Five Year Resident Return) Visa on 11 September 2018.
By a Notice of Intention to Consider Cancellation (NOICC) dated 20 August 2019 given under s.107 of the MigrationAct 1958 (Cth) (the Act), the applicant was given notice of possible non-compliance by him of ss.101 or 104 of the Act.
On 24 September 2019, a delegate of the Minister cancelled the applicant’s visa pursuant to the provisions of s.109(1) of the Act. The applicant then sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
On 17 February 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant’s second wife, Ms Truong, also appeared, and the hearing proceeded with the assistance of an interpreter. The Tribunal identified that the issue before it was whether the ground for cancellation had been made out, and if so, whether the visa should be cancelled.
At [7] - [9] inclusive of its reasons, the Tribunal set out the factual background as follows:
7.On 10 September 2010, the applicant arrived in Australia as the holder of a Subclass 573 student visa. On 20 December 2011, he applied for combined Partner Subclass 820/801 visas. The application was based on his spousal relationship with Ms Thi Be Giang Ms Tran (Ms Tran), his sponsor. On 7 August 2013, he was granted a Subclass 820 partner visa.
8.On 25 March 2014, the applicant was granted a Subclass 801 partner visa, based on his relationship with Ms Tran, the sponsor. On 14 July 2015, the applicant applied for Conferral of Australian Citizenship. On 11 September 2018, the applicant was granted a Subclass 155 five year resident return visa. On 7 December 2017, the Department issued a Notice of intention to consider cancellation (Notice) his citizenship approval. On 29 January 2019, the Department issued a second Notice of intention to consider cancellation (Notice) of his citizenship approval. On 20 August 2019, the Department issued a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return Subclass 155 visa.
9.On 26 August 2013, Ms Truong, the applicant’s current spouse, arrived in Australia as the holder of a Subclass 573 student visa. On 8 December 2015, Ms Truong lodged combined Partner Subclass 820/801 visa applications with the Department. The applicant was declared as the sponsor for the applications. On 19 January 2017, Ms Truong was granted a Subclass 820 partner visa. The applicant claims to have a common child with Ms Truong who was born on 13 October 2015.
Sections 101 – 109 inclusive of the Act relevantly provided as follows:
101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
102 Passenger cards to be correct
A non - citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
103 Bogus documents not to be given etc.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister or the ART performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
104 Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
105 Particulars of incorrect answers to be given
(1) If a non-citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c)information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
106Obligations to give etc. information is not affected by other sources of information
The requirement for a non - citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
(a)any information given by the non-citizen for purposes unrelated to the non-citizen's visa application; or
(b) any other information.
107 Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a written notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance--shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response--when that notice is given; or
(ii)if the holder gives the Minister a written response within that period--when the response is given; or
(iii) otherwise--at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non-compliance by the holder--to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa--the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise--14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107APossible non - compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
108 Decision about non - compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
On 4 March 2020, the Tribunal affirmed the decision of the delegate.
When considering whether the cancellation of the applicant’s visa was valid or not, at [13] – [18] inclusive of its reasons the Tribunal found as follows:
Was there non-compliance as described in the s.107 notice?
13.The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance, as detailed in the delegate’s Notice of Intention to Consider Cancellation (NOICC) and mirrored in the delegate’s decision record and as identified and particularised in the s.107 notice was non-compliance with s.104(1) of the Act in the following respects:
‘Departmental records indicate that you initially arrived in Australia as a holder of a Student (Subclass 573) visa on 10 September 2010 granted to you on 19 August 2010 and valid until 13 March 2014.
On 20 December 2011, you applied for a Partner (Subclass 820/Subclass 801) visa sponsored by Ms Thi Be Giang Tran (7 March 1986, Female).
Page 9
In your Form 47SP – Application for migration to Australia by a partner, you provided the following responses to questions are italicised:
25. Your current residential address?
Note: You are required to provide a residential address on this form for it to be a valid visa application. Under legislation, a post office box address is not acceptable as a residential address.
17 Vimy Street, Bankstown NSW 2200
Page 16
42. Your fiancé(e) or partner’s full name (as shown in passport or travel document)?
Family name: Ms Tran
Given names: Thi Be Giang
47. Sex: Female
48. Date of Birth: 7/3/1986
53. Fiancé(e) or partner's residential address?
17 Vimy Street, Bankstown NSW 2200
Page 19
66. When and where did you and your fiancé(e) or partner first meet?
Date: More than 10 years ago
Place: Vietnam
67. How long after you met did you and your fiancé(e) or partner begin a relationship?
More than 1 years
68. When did you and your fiancé (e) or partner make the decision that you both wanted to commit to a long-term relationship?
Date: 16/06/2011
69. When and where did you begin a married or de facto relationship with your fiancé(e) or partner?
Please see booklet 1, Partner Migration for definitions of married relationship and de facto relationship.
Date: 5/10/2011
Place: Fairfield, NSW
71. Do you and your fiancé(e) or partner intend to maintain a lasting relationship?
Yes
Page 21, your response, in part 82. In which countries have you lived for 12 months (in total) or more during the last 10 years?
Country: Australia
Dates lived there
From: 10/9/2010
To: Current
Last permanent address in that country?
17 Vimy Street, Bankstown NSW 2200
Page 30, signed and dated by 15/11/2011 by you
96. DECLARATION AND CONSENT
WARNING: Giving false or misleading information is a serious offence.
This declaration and consent must be signed by the main applicant and each accompanying person aged 16 years or over.
Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information. Maximum penalty = 10 years imprisonment and/or AUD110,000.
I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.
I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.
I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered, I understand this also applies to my permanent migrant/residence visa application.
I will inform the Department of Immigration and Citizenship if my relationship with my fiancé(e) or partner breaks down or ends in divorce, separation or death before this application is decided.
In support of your partner visa application you provided a NSW Registry of Births Deaths and Marriages marriage certificate for you and Ms Tran dated 10 October 2011 stating the your date of marriage as 5 October 2011.
You provided rental receipts for renting 17 Vimy Street Bankstown NSW 2200 with Ms Tran from December 2011 until April 2013.
You and Ms Tran provided statutory declarations signed 15 December 2011 and 1 August 2013 in which both of them stated that they married on 5 October 2011 and that their relationship was genuine and continuing.
On 7 August 2013 based on the information provided in your partner visa application and meeting the relevant criteria, you were granted a Partner (Subclass 820) visa.
On 4 November 2013 you provided further information in support of your application for the second stage partner visa (the Partner (Subclass 801) visa), which included a Checklist for Partner Visa Processing which included the following information (italicised):
Page 1
Address (Residential)?
37 Pringle Ave, Bankstown, NSW, 2200
Page 2
Your sponsor?
Name: Thi Be Giang Ms Tran
Date of birth: 07/03/1986
Address (Residential): 37 Pringle Ave, Bankstown, NSW, 2200
Page 3
Immediate Family Members?
Relationship you: Wife
Family Name: Ms Tran
All Given Names: Thi Be Giang
Date of Birth: 07/03/1986
Relationship to you: Mother in law
Family Name: Nguyen
All Given Names: Thi Suey
Date of Birth: 18/06/1965
You also provided statutory declarations completed by you and Ms Tran dated 22 October 2013 in which you stated you had a mutual commitment to a shared life as a husband and wife to the exclusion of all others. Your relationship was genuine and continuing and you lived together. In your statutory declaration you stated that your address was 37 Pringle Ave, Bankstown, NSW, 2200. You provided Origin electricity bills addressed to you at 37 Pringle Ave, Bankstown, NSW, 2200 dated 19 July 2013 and 23 October 2013. You also provided Australia Post correspondence and a Vodafone bill addressed to you and Ms Tran at 37 Pringle Ave, Bankstown, NSW, 2200 dated 28 September 2013 and 6 October 2013 respectively.
The criteria for the grant of a Partner (Subclass 801) visa is at regulation 801.221 of the Migration Regulations 1994, part thereof which states:
801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
Spouse is defined at Section 5F of the Migration Act:
Section 5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
do not live separately and apart on a permanent basis.
(ii) (3) The regulations may make provision in relation to the determination of whether one or more of
the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision
in relation to the determination for different purposes whether one or more of those conditions exist.
Based on the submitted information alongside satisfying the above and other relevant criteria, the delegate considered you were Ms Trans’s spouse and on 25 March 2014 granted the permanent stage Partner (Subclass 801) visa.
Since the grant of your partner visa, adverse information has come to the Department’s attention about your relationship with Ms Tran.
On 26 August 2013, Ms Thach Van Anh Truong (Ms Truong) (11 January 1989, Female) arrived in Australia on a Student (Subclass 573) visa. On her incoming passenger card dated 26 August 2013, Ms Truong stated that her intended and contact address in Australia was 37 Pringle Avenue, Bankstown, NSW.
The Department has access to Provider Registration and International Student Management System (PRISMS), the Department of Education’s register for international students. PRISMS indicated Ms Truong advised her education provider on or about 11 September 2013 that her address was 37 Pringle Avenue, Bankstown, NSW.
On 8 December 2015, Ms Truong applied for a Partner (Subclass 820/Subclass 801) visa sponsored by you. In her Form 47SP – Application for migration to Australia by a partner, Ms Truong provided the following responses (italicised):
Page 9
29. Your parents (including full and step parents)?
Family name: Nguyen
Given names: Van Hung
Sex: M
Date of birth: 30/12/1963
Relationship status: M
Relationship to you: Step-Father
Country of residence: Vietnam
Relationship status codes
M = Married
Page 11
35. Your fiancé(e) or partner’s full name (as shown in passport or travel document)?
Family name: Nguyen
Given names: Hong An
40. Sex: Male.
41. Date of Birth: 7/3/1986
Page 14
55. What is the current relationship with your sponsor? (page 14)
Married
Date of marriage: 21/08/2015
Place of marriage: Fairfield, NSW
57. Have you and your fiancé(e) or partner met in person?
When did you first meet?
05/09/2004
Where did you first meet?
My high school
58. When did you and your fiancé(e) or partner commit to a shared life together to the exclusion of all others?
01/07/2014
63. Has your fiancé(e) or partner been married to a person other than you (including if they are still legally married to that person)?
Yes
Name of previous spouse
Thi Be Giang Ms Tran
Their date of birth: 07/03/1986
Date of marriage: 05/10/2011
Date marriage ended: 24/06/2015
How did the marriage end?
Divorce
Number of children from this relationship? 0
Ms Truong submitted a Form 80 Personal particulars for assessment including character assessment dated 16 December 2015 in which she provided the following responses (italicised):
Page 2, in part
17. Your address history for the last 10 years?
Date from: Nov-2014
Date to: Current
Full address: 38 Pringle Ave Bankstown NSW 2200
Country: Australia
Date from: Sep-2013
Date to: -
Full address: 37 Pringle Ave Bankstown NSW 2200
Country: Australia
Date from -
Date to: Sep-2013
Full address: 426/48 CMT8, P11, Q3, Ho Chi Minh City
Country: Vietnam
A Form 40SP Sponsorship for a partner to migrate to Australia completed by you dated 29 September
2015 was submitted by Ms Truong stating:
Part H – About your home?
42. How many bedrooms does the dwelling have? 04
43. How many people live in the dwelling? 02
44. What is the relationship of these people to you? Spouse
45. Ownership of dwelling: Paying home loan
Ms Truong also provided the following documents:
• Family Law Act 1975 Divorce Order dated 24 June 2015 stating your marriage with Ms Tran ended on 25 July 2015.
• NSW Registry of Births Deaths and Marriages marriage certificate dated 12 June 2016 for Ms Truong and your marriage on 21 August 2015.
• NSW Registry of Births Deaths and Marriages birth certificate dated 29 October 2015 for Jayden (the child) October 2015, Male stating that you and Ms Truong are his parents.
You and Ms Truong provided statutory declarations dated 23 November 2015 stating that you were friends since high school and met by chance in August 2014 at Bankstown after Ms Truong had arrived in Australia to undertake education. You moved in with Ms Truong in October 2014. You married Ms Truong on 21 August 2015 and you have a child together born on 13 October 2015.
Based on this information alongside satisfying other relevant criteria, on 19 January 2017 Ms Truong was granted a Partner (Subclass 820) visa.
On 14 July 2015 you lodged an application for Conferral of Australian Citizenship. On 7 December 2017 the Department issued you a Notice of intention to consider cancellation (Notice) of your citizenship approval regarding your application for Australian citizenship.
You were provided an outline of your immigration and relationship history in Australia and requested to comment on it, including to comment, on your separation from Ms Tran within less than one month after the grant of the Partner (Subclass 801) visa.
In your response to this Notice, on 4 January 2018 you submitted a statutory declaration and submission prepared by your solicitor Andie Lam stating that towards the end of April 2014 when you were living with your ex-wife (Ms Tran) and mother in law at 37 Pringle Ave, Bankstown, you had a falling out with your mother-in-law who threw you out of the house. You then rented a house opposite to Ms Tran at 38 Pringle Avenue Bankstown. You claimed that over the following months, you attempted to reconcile your relationship with Ms Tran however when you learnt that she had travelled to Vietnam and had cut off all communication with you, you realised your marriage with Ms Tran was over.
You also provided the following supporting documents:
•Confirmation letter from Vanessa Nguyen, the landlord of 38 Pringle Avenue Bankstown dated 5 April 2018 stating that you were living at this address from April 2014 until March 2017. You also provided her NSW Land Registry Services – Title search record dated 9 April 2018.
•Statutory declaration signed by Tolufitu Tusitala on 9 April 2018 stating that you were living at 38 Pringle Avenue around May 2014 to 2017 and Ms Truong started living there in October 2014.
•On 29 January 2019 you were issued a second Notice by the Department in relation to the consideration of the cancellation of your citizenship approval and requested your response.
In addition to the information included in the initial Notice dated 7 December 2017, this Notice stated that Ms Truong and you may have been residing at 37 Pringle Avenue Bankstown as early as 26 August 2013 and therefore you may not have been in a genuine relationship with your sponsor (Ms Tran) at the time.
This was based on Ms Truong’s Form 80 Personal particulars for assessment including character assessment dated 16 December 2015 in which on Q17 of page 2 she provided the following responses:
Page 2, in part
Your address history for the last 10 years?
Date from: Nov-2014
Date to: Current
Full address: 38 Pringle Ave Bankstown NSW 2200
Country: Australia
Date from: Sep-2013
Date to:
Full address: 37 Pringle Ave Bankstown NSW 2200
Country: Australia
This also suggested that you were in contact with Ms Truong as soon as she arrived in Australia and Ms Truong was residing with you from as early as 26 August 2013, and therefore your claim to have ‘ran into’ her in Bankstown shops by coincidence in August 2014 was questionable.
It was noted that on your Form 40SP Sponsorship for a partner to migrate to Australia dated 29 September 2015 you had stated that two people (you and spouse) lived in the dwelling for which you were paying a home loan. It was also noted that on 4 January 2018 you had provided a letter of support from your landlord of 38 Pringle Avenue Bankstown dated 5 April 2018 stating that you were living at this address from April 2014 until March 2017.
From the landlord’s NSW Land Registry Services – Title search record dated 9 April 2018, it appeared that you had either provided false information in the application for sponsorship of Ms Truong’s partner visa (namely, that you were paying the home loan at that address), or submitted fraudulent documentation in your landlord’s letter and title search record in response to the Department’s initial Notice dated 7 December 2017.
The Notice also stated that the Department had evidence that you had made at least five international funds transfers to Ms Truong in 2013 and 2014 while you were residing at 17 Vimy Street Bankstown and 37 Pringle Avenue Bankstown. You also made at least three financial Ms Transfers to Van Hung Nguyen, Ms Truong’s step-father, raising further concerns about you being in a relationship with Ms Truong at a time when you claimed to be in an ongoing relationship with your sponsor Ms Tran.
On 24 March 2019 you provided a response to the above Notice which included the following documents:
•Statutory declaration from you dated 11 March 2019
•Copy of your Vietnam passport C3482866 issued on 13 June 2017
•Copy of your NSW driver licence (2037758884) and Medicare card (2722808099)
•Your National Police Certificate dated 8 February 2019
•Visa Entitlement Verification Online check
•Ceremonial marriage certificate for you and Ms Truong dated 21 August 2015
•NSW marriage certificate dated 12 June 2016
•Ms Truong’s Vietnam passport B7890693 issued on 7 May 2013
•Letter of support from SET Education Sydney
•Statutory declaration from Mary Ngo dated 4 March 2019
•Ms Truong’s training course completion certificate and tax invoice dated 6 June 2014 and 13 June 2014 from Australia Massage and Jayden Hong Nguyen’s Australian Citizenship Certificate, NSW birth certificate and Australian passport
•Letter from Dr Dinh-Cuong Le dated 31 January 2019
•Your DNA parentage results and reports dated 24 February 2017 from Sonic Genetics
•Sydney Phone Parts P/L Certificate of registration of a company documents
•Your and Ms Truong’s individual tax returns for 2016 and 2017
•Your superannuation documents
•Contract of sale of land – 2005 edition for 5 Russell Street, Mt Pritchard NSW 2170.
On 6 February 2019 you requested the Department to provide evidence for the eight financial transfers referred to in the Notice dated 29 January 2019. The Department sent you an email on 26 March 2019 attached to which was an AUSTRAC1 report listing the details of the relevant eight international fund transfers made to Ms Truong and Van Hung Nguyen in 2013 and 2014 as following:
Ms Transfers to Van Hung Nguyen
23 July 2013 $6,500, 5 January 2014, $250, 19 May 2014, $5,000
Ms Transfers to Ms Truong
16 March 2013, $4,263, 29 May 2013, $2,024, 15 June 2013, $199, 2 July 2013, $180, 19 August 2013, $150
On 9 April 2019 you responded via a statutory declaration dated 9 April 2019 disputing the financial Ms Transactions stating that you had requested the actual transfers but had only been provided a list of the transfers by the Department. You had contacted Vina Money Transfer Agent to verify these transactions for which they had advised you of having no records for them. You had already advised the Department that at that time you were associated with SET Education Sydney and made several financial transfers to students you were representing. You had no relationship with Ms Truong from 2004 to August 2014. Ms Truong had requested you to provide assistance with her student visa application but you had not personally met her.
On 18 July 2019 after taking your responses into consideration, the Department cancelled your Australian citizenship approval.
Based on the information before me, I consider that Ms Truong had been living with you at 37 Pringle Ave, Bankstown, NSW, 2200 since her arrival in Australia on 26 August 2013 and that your relationship had commenced earlier or at least from that time onwards. This appears to indicate that at that time of providing further information to the Department on 4 November 2013 in support of your Partner (subclass 801) visa application, you were not in a genuine, ongoing relationship with Ms Tran to the exclusion of all others.
I consider that you did not comply with section 101(b) of the Migration Act as the following information you provided in the Partner (subclass 801) visa application on 4 November 2013 appears to be incorrect:
Your statutory declaration dated 22 October 2013 in which you stated that you and Ms Tran had a mutual commitment to a shared life as a husband and wife to the exclusion of all others and that your relationship was genuine and continuing.
I also consider that the you did not comply with section 104 of the Migration Act as it appears that prior to the grant of the Partner (subclass 801) visa on 25 March 2014, your circumstances had changed in that you were no longer in a genuine, ongoing relationship with your sponsor Ms Tran to the exclusion of all others. You did not notify the Department of the change to your circumstances before the grant of the Partner (subclass 801) visa. Had you notified the Department of the above change, you would not have satisfied criterion 801.211 and in turn you would not have been granted the permanent stage Partner (subclass 801) visa.
Section 107A of the Migration Act allows for cancellation of a current visa if there has been noncompliance in connection with a previous visa. Accordingly, your Resident Return (subclass 155) visa is liable for cancellation under section 109 of the Migration Act. It is not relevant whether you deliberately or inadvertently did not comply.’
The response to the NOICC
14. For clarity, from this point in the decision record Mr Nguyen will be referred to as the applicant
15.In a statement provided by the applicant’s migration agent in September 2019, the applicant stated that he understood that the Department intended to cancel the partner visa because of false information that he provided in his visa application. He understands that he did provide evidence that is inconsistent with other evidence subsequently provided and may be false. He cannot explain his actions or why he did this at the time but he knows that he was just stupid and made bad decisions to get to that point.
16. On 3 September 2019, the applicant’s migration agent stated the following: The applicant acknowledges that the information he provided to the Department may be incorrect and in breach of s.101 of the Act. He failed to provide updated information to the Department to rectify the incorrect information. He understands that his actions were not acceptable and appreciated the severity of the consequences that would follow. He did not intend to provide any information to the Department that was incorrect or false or misleading. He has no explanation for his actions and it was a bad decision on his part. There are strong and compelling grounds that his visa should not be cancelled.
17. The Tribunal finds that the applicant did not comply with s.104 of the Migration Act. Prior to the applicant being granted the Partner (Subclass 801) visa on 25 March 2014, his circumstances had changed. He was no longer in a genuine, ongoing relationship with his sponsor Ms Tran to the exclusion of all others. The applicant did not notify the Department of the change to his circumstances before the grant of the Partner (Subclass 801) visa.
18.For these reasons, the Tribunal finds that there was non-compliance with s.104 of the Act by the applicant in the way described in the s.107 notice.
Grounds of Review
On 6 April 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 6 October 2020, the applicant filed an Amended Application for Review. At the hearing before the Court, the applicant only relied upon Ground 1 which was as follows:
1.The Second Respondent (Tribunal) erred in its statutory task by failing to comply with the requirements of s.108(b) and section 109 of the Migration Act 1958 (the Act), and in so doing acted beyond jurisdiction.
Particulars
a. The Tribunal was required to review the decision made by the delegate of the Second Respondent (Minister) to cancel the Applicant’s Subclass 155 (Five Year Return Resident) (155 visa) pursuant to s.109 of the Act and, in particular, to consider:
i. whether the notice of intention to consider cancellation (NOICC) issued by a delegate of the Minister complied with the terms of s 107 of the Act;
ii. if so, whether there was non-compliance by the Applicant in the way described in the notice – in other words, whether the Applicant provided incorrect answers within the meaning of s 101(b) of the Act, and did not comply with s.104 of the Act in his visa application; and
iii. if so, whether the visa should be cancelled under s.109, having regard to the circumstances prescribed in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations).
b. The Tribunal found at paragraph [12] of its reasons that the NOICC complied with the statutory requirements, and at paragraph [13] that there had been non-compliance with section 104(1) of the Act. It further found at paragraph [17], that there had been non-compliance with s.104 of the Act because ‘[p]rior to [him] being granted the Partner (Subclass 801) visa … his circumstances had changed [and] he was no longer in a genuine, ongoing relationship with his sponsor .. to the exclusion of others’, and he ‘did not notify the Department of the change in his circumstances before the grant of the Partner (Subclass 801) visa.’
c. The decision of the Tribunal as to non-compliance was limited to deciding that there had been noncompliance by the Applicant with s 104 of the Act. The Tribunal did not make findings in relation to whether the Applicant provided incorrect answers within the meaning of s.101(b) of the Act before it proceeded to consider whether the Applicant’s visa should be cancelled having regard to, inter alia, the prescribed circumstances in reg.2.41 of the Regulations.
d. It was not, on the findings made, open the Tribunal to move to the exercise of the power under s.109 of the Act as the power only arises if there has been non-compliance in the way described in the notice according to s.108(b) of the Act.
e.In these circumstances, the Tribunal has purported to exercise a power which it was not authorised to exercise, and in so doing acted beyond jurisdiction.
Counsel for the applicant submitted that the issue before the Court was a narrow one. It was submitted that under the provisions of s.108(b) of the Act, the Tribunal was required to make a decision as to whether each of the grounds of possible non-compliance (namely non-compliance with both ss.101 and 104 of the Act) as set out in the NOICC had been made out. It was submitted that the Tribunal had not properly carried out its legislative function because it had only found that there had been non-compliance by the applicant with respect to s.104 of the Act, when it was also required to make a finding that there had been alleged conduct set out in the NOICC which also constituted non-compliance with s.101 of the Act.
It was submitted on behalf of the first respondent that it was sufficient for the Tribunal to only find non-compliance with s.104 of the Act so as to found a basis for affirming the decision of the delegate to cancel the visa, and that the Tribunal didn’t need to deal with other possible contraventions which may have been set out in the NOICC. The Court agrees with the submissions as made by Counsel for the first respondent.
It is of significance that in s.107(1)(a) of the Act that the NOICC notice able to be given by the Minister to the applicant was a notice which gave “particulars of the possible non-compliance” by the applicant with the provisions of ss.101, 102, 103, 104 or 105 of the Act. The word “possible” when used in s.107(1) of the Act, as a matter of construction, did not preclude the Minister from making reference to more than one possible contravention when giving a NOICC to a visa holder, nor did it require the Minister to assert in the NOICC that the identified contravention was an actual, as opposed to a possible, contravention.
As a matter of construction, the Court holds that the delegate need only be satisfied that there had been conduct committed by a visa holder which constituted a contravention of one of the identified provisions so as to justify cancellation of their visa.
The Court does not accept the submission made on behalf of the applicant that s.108(b) of the Act ought to be construed as meaning that the words “non-compliance by the visa holder in the way described in the notice” required the Tribunal to make a finding regarding each aspect of the conduct of the visa holder which was claimed in the NOICC to be a possible way in which the specified provisions in the Act had been contravened. The Court also does not accept, as a matter of construction, the submission that had the legislature intended that only one identified contravention in an NOICC was required to be the subject of the making of a valid decision by the Tribunal, the word “a” would have been substituted for the word “the” in s.108(b). Again, the use of the word “the” in s.108(b) of the Act does not preclude the Tribunal from placing reliance upon only one of a number of possible contraventions, as set out in the NOICC, so as to found the basis for the making of a visa cancellation decision.
In Kang v Minister Immigration and Citizenship [2013] FCA 711 at [26] – [29] inclusive, North J found as follows:
[26]The approach to the construction of such a notice was explained in MIAC v Brar at [61], as follows.
In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109.
(Emphasis added.)
[27]The sentence in the notice relied upon by the Minister has two aspects. One concerns the admission about the provision of the work reference. The other concerns the substance of the reference, namely, the false claim that the person had completed 900 hours of work experience.
[28]The Minister submitted that, to the extent that the allegation of noncompliance is unclear, the fault is minor. This argument should be accepted. The notice could have set out the allegation of contravention constituted by the provision of the TRA skills assessment a little more clearly by shifting the description of the false or misleading statement relied upon to a position in the notice nearer to the allegation of contravention by provision of the TRA skills assessment.
[29]However, the appellant would have been under no misapprehension that the false or misleading statement alleged was that he had worked for 900 hours for the referee. The appellant would not have apprehended that the false or misleading statement alleged was only that he had provided a work reference which purported to be issued in relation to the appellant but was not. This is an artificial reading of the notice.
It could not be suggested that the bases of contravention had not been made clear to the applicant in the body of the NOICC. [1] The bases for alleged contravention were set out in the NOICC as follows: [2]
Based on the information before me, I consider that TROUNG had been living with you at 37 Pringle Ave, Bankstown, NSW, 2200 since her arrival in Australia on 26 August 2013 and that your relationship had commenced earlier or at least from that time onwards. This appears to indicate that at that time of providing further information to the Department on 4 November 2013 in support of your Partner (subclass 801) visa application, you were not in a genuine, ongoing relationship with TRAN to the exclusion of all others.
I consider that you did not comply with section 101(b) of the Migration Act as the following information you provided in your Partner (subclass 801) visa application on 4 November 2013 appears to be incorrect:
•Your statutory declaration dated 22 October 2013 in which you stated that you and TRAN had a mutual commitment to a shared life as a husband and wife to the exclusion of all others and that your relationship was genuine and continuing.
I also consider that you did not comply with section 104 of the Migration Act as it appears that prior to the grant of your Partner (subclass 801) visa on 25 March 2014, your circumstances had changed in that you were no longer in a genuine, ongoing relationship with your sponsor TRAN to the exclusion of all others. You did not notify the Department of the change to your circumstances before the grant of your Partner (subclass 801) visa. Had you notified the Department of the above change, your application would not have satisfied criterion 801.211 and in turn you would not have been granted the permanent stage Partner (subclass 801) visa.
Section 107A of the Migration Act allows for cancellation of a current visa if there has been noncompliance in connection with a previous visa. Accordingly, your Resident Return (subclass 155) visa is liable for cancellation under section 109 of the Migration Act. It is not relevant whether you deliberately or inadvertently did not comply.
[1] Exhibit 1 (Court Book – CB) pp. 365 - 378
[2] See CB p. 375
Further, the Court rejects the submission made on behalf of the applicant that the concessions as to non-compliance made in submissions provided to the Tribunal [3] and in a statutory declaration provided to the Tribunal [4] related only to the incorrect recording of the applicant’s address on visa application documentation. Indeed, it was clear from the submission dated 29 January 2020 that the applicant had conceded that he had failed to provide updated information to the Department in breach of s. 104 of the Act relating to his circumstances (albeit that the submission erroneously referred to s. 101 when it should have referred to s. 104) when it was said: [5]
[3] See CB pp. 382 – 385 at 383; CB p. 386 at iii and iv; CB pp. 458 – 463 at 459
[4] See CB pp. 386 – 387
[5] See CB p. 459
Submission
The Applicant understands and acknowledges that he has provided information that may be incorrect and in breach of section 101 of the Act, and he has failed to provide updated information to the Department to rectify now incorrect information. However, the Applicant clarifies that this was the result of issues in his marriage to the Former Sponsor and a mis-timed overlap with his relationship with the Second Applicant.
Once again, however, we submit that there are strong and compelling grounds that the Applicant’s visa should not be cancelled, and we respectfully request that the Presiding Member exercise their discretion to not cancel the Applicant’s visa and set aside the Department’s original decision.
The Court respectfully adopts what was held by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272 where it was said:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin.”
The Court finds that the Tribunal did not err in making the finding which it did at [18] of its reasons. There was evidence before it that justified it in making such finding.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The ground of review relied upon is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 19 June 2025
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 953
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