NRST and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 208

NRST and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 208 (12 March 2025)
Applicant/s:  NRST
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10670

Tribunal:General Member S. Fenwick
Place:Melbourne
Date:12 March 2025

Decision:The Tribunal sets aside the decision under review and substitutes it with the decision that the discretion to refuse the grant of NRST’s visa should not be exercised.

........................[SGD]................................................
General Member S. Fenwick
Catchwords
MIGRATION – visa refusal – Partner (Temporary) (Class UK) visa – citizen of Vietnam – drug related offending – failure to pass the character test – whether discretion to refuse visa should be exercised – Ministerial Direction No 110 applied – strength, nature and duration of ties to Australia considered – best interests of minor child considered – Protection Visa refusal considered – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
CKL21 v Minister for Home Affairs [2022] FCA 70
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 1369
Tanlieu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
BACKGROUND

NRST applied on 19 December 2024 for the review of a decision by a delegate of the Respondent Minister dated 18 December 2024 refusing the grant of a Partner (Temporary) (Class UK) visa. The discretion to refuse under s 501(1) of the Migration Act 1958 (Cth) (the Act) was based on NRST’s failure of the character test by reason of his substantial criminal record, as defined in the Act.
The Applicant was born in Vietnam in 1990 and lived there until 2013 when, aged 23 years, he arrived in Australia. NRST undertook some study and intended to pursue further qualifications here but was convicted in 2015 of cannabis ‘crop sitting’ and was sentenced to 12 months in prison. His student visa was cancelled and NRST spent a period in immigration detention. Upon release the Applicant became an unlawful non-citizen, later applying for a Protection visa and then the partner visa the subject of this matter.
NRST’s partner visa application arises from his relationship with his long-term partner, Ms N, with whom the Applicant has a daughter, currently aged five and a half years. Ms N is also a citizen of Vietnam. In 2022 the Applicant was convicted of trafficking in methamphetamine and heroine, in an enterprise conducted by a former prison-mate, and was sentenced to just over 12 months in prison. NRST’s Protection visa application was refused and this decision was affirmed by the Administrative Appeals Tribunal in August 2022.
NRST was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC) and…

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.

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Details

AGLC: NRST and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 208
Case: [2025] ARTA 208
Decision Date: 12 March 2025

CaseChat Overview and Summary

NRST, a citizen of Vietnam, applied for a Partner (Temporary) (Class UK) visa, which was refused by the Minister for Immigration and Multicultural Affairs. The primary issue in this case was whether the discretion to refuse the visa should be exercised under Ministerial Direction No 110, considering NRST's drug-related criminal history and character test failure. The court also examined the strength of NRST's ties to Australia and the impact of the visa refusal on his minor child, as well as whether a Protection Visa should be granted.

The court considered the nature and seriousness of NRST's drug-related offending, his rehabilitation prospects, and the effect of his offending on his relationship with his partner and their minor child. NRST had been involved in the preparation, storage, and distribution of methylamphetamine and heroin, for which he was sentenced to imprisonment. The court acknowledged NRST's remorse, early guilty pleas, and reasonable prospects of rehabilitation. The court further considered the impact of the visa refusal on the minor child, weighing the importance of maintaining the relationship between NRST and his child against the seriousness of the offending. The court found that the best interests of the child would be served by allowing NRST to remain in Australia.

The court concluded that despite NRST's criminal history, the discretionary power to refuse the visa should not be exercised. The court took into account the strength of NRST's ties to Australia, his ongoing parental role in his daughter's life, and the potential emotional strain on the child if NRST were to be separated from her. The court also considered the evidence of NRST's rehabilitation and the impact of the visa refusal on the minor child's well-being.

The decision to set aside the visa refusal and substitute it with a grant of the visa was made. The court found that the best interests of the minor child, as well as the other factors considered under Ministerial Direction No 110, outweighed the seriousness of NRST's offending. The court was satisfied that NRST met the character test and that granting the visa was in the best interests of all parties involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Overall, I consider this consideration weighs heavily in the Applicant’s favour.Best interests of minor children in Australia affected by the decision The interests of a single minor child, the daughter of NRST and Ms N, are engaged in this matter (8.4). The written statements dated in 2025 of both the Applicant and Ms N (AB), for example, both speak at length about not only their relationship but of NRST’s love, affection and regular contact with their daughter. NRST’s 2024 statement (G2/N) is accompanied by a very large collection of personal photographs and screen shots demonstrating a strong and ongoing bond (G2/O). There is corroborating evidence from a childcare centre (G2/AA1). There is written and oral evidence in this matter demonstrating there was a brief separation between NRST and Ms N around the time of his second offending. At the hearing, the Applicant explained that this arose because they spoke and he decided it was best to leave the house. The context for this was his partner’s mental health condition, and his inability to cope. While NRST states in his 2025 statement that there were days when he didn’t come home, I understood his evidence to be that there was a separation of approximately two months, but that he maintained contact with the family during this time. I note that, while no longer under 18, Ms N has a son from a prior relationship and care for this child appears to be shared with the father. In her 2020 statement (G2/P), Ms N states that she would have difficulty funding travel for two children to Vietnam were NRST to return. In the original written submissions for the Applicant (G2/AE) it is contended that in the context of potential permanent separation, electronic communication remains a poor substitute for personal contact with a child [44]. This consideration is said therefore to weigh in favour of not exercising the power to refuse grant of the visa [47]. It was noted in the Respondent’s closing submissions that there may be evidence that Ms N could have difficulty coping as a parent given ongoing mental health issues. At the same time it was contended that Ms N is in fact the child’s primary caregiver. It was conceded in oral and written submissions, however, that this consideration weighs in NRST’s favour, but is outweighed by other considerations. There are a number of factors identified in the Direction as requiring consideration (8.4(4)). NRST clearly has had, and continues to have, a close, parental role in his daughter’s life, notwithstanding incarceration and immigration detention. I consider it likely he would continue to play such a role, and that physical separation would create an emotional strain particularly for his daughter. Notwithstanding some possible personal challenges, Ms N has nevertheless played the role of primary carer during NRST’s time in prison and detention. I find that this consideration weighs heavily in favour of not exercising the discretion to refuse the visa.Expectations of the Australian community

Ratio Decidendi

Legal Principle Established

I must first be satisfied that NRST fails the character test, and this fact is demonstrated by reference to the Applicant’s criminal history record (G2/B). Accordingly I must now determine whether or not to exercise the discretion in favour of refusal of the visa sought.PRIMARY CONSIDERATIONSProtection of the Australian communityNature and seriousness of the applicant’s offending In mid-2022, NRST was sentenced in a County Court after pleading guilty to two charges of traffick drug of dependence. The sentencing remarks provide a brief summary of this offending (G2/D). NRST worked with two co-accused across three properties in a scheme for the preparation, storage and distribution of methylamphetamine and heroine over a period of several months. Text messages confirmed the Applicant’s involvement in conducting transactions on behalf of the primary co-accused, and that NRST lived for some time on one of the properties raided by police. The Applicant was paid in the form of drugs and accommodation and there was no other financial enrichment. He was charged only with trafficking heroin for a limited period, and methamphetamine on one day. However, the prosecution summary includes numerous references to NRST dealing methamphetamine on other occasions and assisting in its purification. He was also found guilty of cannabis possession but the matter was discharged. The judge noted that NRST was said to have been experiencing difficulties in his relationship at the time of the offending. This included the deterioration in the relationship as his partner developed a mental health condition post-partum. With little other family support, NRST left the family home for a time and agreed to work with a person he previously met in custody in the drug enterprise. The judge further noted the difficulty of NRST’s time in custody during the pandemic, including that he did not have access to rehabilitation programs. It was also accepted that he had reasonable prospects of rehabilitation. The judge noted the seriousness of the offending based upon the nature of the conduct and its scale, and found that its gravity merited a term of imprisonment. Sentencing remarks are also available for NRST’s earlier conviction in 2015 (G2/C). The Applicant plead guilty to a single charge of cultivation of not less than a commercial quantity over a period of around seven months in 2014. He also plead guilty to a charge of theft of electricity for which a compensation order of over $11,000 was made. The cannabis operation was sophisticated, albeit NRST lived rent‑free at the premises pending a fee upon harvest and was not the organiser of the scheme. It was accepted that the offending occurred in circumstances where financial assistance from NRST’s parents had stopped due to their separation and NRST was unable to make sufficient money during his studies to cover his expenses. The judge accepted the Applicant was somewhat naïve in not realising the consequences of associating with criminals, and – aged 24 – was sentenced as a youthful offender. NRST’s early guilty pleas were accepted as evidence of remorse and he was sentenced on the basis it was unlikely he would commit this offence again.