Trinh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Trinh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2538 (14 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2479
Re:Anh Nguyen Trinh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:14 August 2023
Place:Melbourne

The Tribunal sets aside the decision dated 12 April 2023 to refuse the Visa Applicant a Partner (Provisional)(Class UF) visa. In its place the Tribunal substitutes a decision that the discretion in s 501(1) of the Migration Act 1958 should not be exercised to refuse the visa.
................................. [SGD].......................................
Senior Member D. J. Morris
Catchwords
MIGRATION – review applicant seeks review of decision to refuse visa applicant a provisional partner visa – visa applicant a citizen of the Socialist Republic of Vietnam – visa refused by delegate on basis of risk visa applicant would offend in Australia – previous criminal convictions – breaches of visa conditions – questions before tribunal – does visa applicant fail character test – visa applicant found to fail character test – should discretion be exercised to refuse visa – Direction No. 99 – primary considerations – other considerations – recent relocation of review applicant – offending now ten years ago – no evidence of any further offending – no custodial sentence – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DPP v Nguyen [2014] VCC 1274
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Nguyen and Minister for Immigration and Border Protection; Re: [2016] AATA 580
Secondary Materials
The Concise Oxford Dictionary (4^th Ed.); H.W. and F. G. Fowler; Clarendon Press (1960)
Migration Act – direction under s 499 – Direction No. 99 – visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (commenced March 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
14 August 2023

This matter relates to the review of a decision of a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs. On 12 April 2023 the delegate decided to refuse an application by Mr Hoang Duy Nguyen for a Partner (Provisional)(Class UF) visa under s 501(1) of the Migration Act 1958 (‘the Act’).
The application was lodged by Ms Anh Nguyen Trinh, who is the sponsor of the partner visa and the wife of Mr Nguyen. Ms Trinh is the holder of a permanent visa and thereby has standing to seek review of the refusal decision with the Tribunal, which she did on 19 April 2023. The matter is therefore in her name as the Review Applicant. Mr Nguyen is the Visa Applicant.
HEARING
The matter was heard on 6 and 7 June and 10 and 11 July 2023. The gap was necessitated owing to the sudden illness of a witness. The matter was conducted by video link under s 33A of the Administrative Appeals Tribunal Act 1975. For the first two days of the hearing, the Review Applicant and Visa Applicant were outside the migration zone, in the country of their citizenship, the Socialist Republic of Vietnam. For the hearing dates on 10 and 11 July, the Review Applicant was in Australia, so inside the migration zone. Ms Trinh had arrived in Australia with the couple’s daughter. That fact required a change in the Tribunal’s consideration of the matter, and the Tribunal invited submissions from the parties on the change. More will be said about that below.
The Visa Applicant and Review Applicant both gave oral evidence. They called Mr Jeffrey Cummins, psychologist, who also gave oral evidence as an expert witness. The Review Applicant was represented by Mr David Mulligan of counsel, instructed by Mr Johnnie Viet Anh Le of JLE Lawyers. The Minister was represented by Ms Catherine Oppel and Mr David Brown, both of The Australian Government Solicitor.
The Tribunal had regard to a Statement of Facts, Issues and Contentions lodged by the Review Applicant (‘ASFIC’), a Statement of Facts, Issues and Contentions lodged by the Respondent (‘RSFIC’), and a Statement in Reply lodged by Mr Mulligan for the Review Applicant. Other documents taken into evidence are in the annexure to these reasons.
IMMIGRATION BACKGROUND
The RSFIC set out the immigration background of Mr Nguyen and Ms Trinh. It was not in contest between the parties.
In April 2009 Mr Nguyen came to Australia on a student visa to study a degree at Swinburne University in Melbourne. Ms Trinh had been studying in the United States of America where she obtained an associate degree in chemical and biological engineering. In August 2011 she joined Mr Nguyen in Australia. They opened a joint bank account and lived together as a couple from January 2012.
Mr Nguyen completed his Bachelor of Business Information Systems degree in April 2014. He then applied for a further student visa in order to study a Master of Business. That application was refused in May 2016 because of his criminal offending, which is set out below. The delegate found that Mr Nguyen did not pass the character test at s 501(6)(d)(i) of the Act.
Mr Nguyen sought review by the Tribunal. On 8 August 2016 Member Dr Gordon Hughes, AM, set aside the delegate’s refusal decision. In December 2017 the then Minister, acting personally, set aside the Tribunal’s decision under s 501A(2) of the Act.
Mr Nguyen stayed in Australia on bridging visas until a few months after that decision and completed his master’s degree in March 2016. Ms Trinh left Australia in February 2018 and returned to Vietnam, and Mr Nguyen returned there the following month.
The Review Applicant and Visa Applicant became engaged in October 2018 and married on 5 January 2019. Their daughter, who will be called ‘AD’, was born in April 2021.
Ms Trinh had applied for a Skilled Independent (Subclass 189) permanent residence visa in 2018, and she was granted that visa in June 2019 subject to the condition that she does not arrive in Australia on that visa after 22 June 2024. In her application, dated November 2018, Ms Trinh answered the question ‘Do you have a partner?’ (which was defined to include boyfriend, fiancé or significant other) by ticking the box marked ‘No’.
THE TRIBUNAL’S TASK
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the Minister is not satisfied that they pass the character test. The first question, therefore, for the Tribunal is to decide whether Mr Nguyen passes the character test. If he does, the Tribunal would remit the matter to the Minister’s Department with a direction that the discretion to refuse the visa does not arise. If, however, the Tribunal finds that Mr Nguyen does not pass the character test, a second question arises: should the discretion to refuse the visa be exercised?
Does the Visa Applicant pass the character test?
The ground on which the Minister’s delegate decided that Mr Nguyen did not pass the character test is found in s 501(6)(d)(i) of the Act – in the event the person was allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
In January 2023 the Minister issued a direction under s 499 of the Act relating to the refusal of visas under s 501 of the Act, Direction No. 99 (‘the Direction’). Decision-makers, including this Tribunal, must have regard to the contents of the Direction.
Annex A of the Direction relates to the application of the character test. Section 1(2) provides that persons who are being considered under s 501 of the Act must satisfy the decision-maker that they pass the character test set out in s 501(6) of the Act.
THE VISA APPLICANT’S OFFENDING
Mr Nguyen’s family, including an aunt who lived in Australia, gave him some financial support to study in Australia. He also worked in 2009 and 2010 as a waiter in restaurants to supplement his income, and started buying and selling second-hand electronic goods for profit.
Mr Nguyen met a man Chris Dawn-Manuel online when he bought a mobile phone from him in 2010. In 2011 he resumed contact with Dawn-Manuel, and they met in person.
Mr Nguyen’s first offence was in April 2011. He attempted to export 100 portable phones with batteries through a courier company. On 28 August 2014 he was convicted by the Magistrates’ Court of Victoria of the Commonwealth offence of Carry Dangerous Goods On Board An Aircraft, and was fined $1,000.
In the meantime, Dawn-Manuel had set up a criminal enterprise involving identity fraud. He obtained personal information from Optus mobile phone applications which was then used to obtain a large number of credit cards and access to thousands of dollars of credit which was then used to purchase electronic goods at retail stores and then re-sell these goods at a discount. Dawn-Manuel sometimes used third parties, including Mr Nguyen.
In March 2013 Mr Nguyen agreed to Dawn-Manuel’s offer to sell him electronic products at a discounted price if the Visa Applicant agreed to make fake driver licences for him. Mr Nguyen made approximately 100 fake Northern Territory and Victorian driver licences for Dawn-Manuel. Mr Nguyen purchased a small printer with a special tray to accommodate cards and bought plastic cards from a US-based website. He did this from his bedroom in the group house in which he resided while studying.
Victoria Police arrested Mr Nguyen in September 2013. Mr Nguyen had also on-sold electronic products he had obtained from Dawn-Manuel to another person. Mr Nguyen pleaded guilty to three offences: Handle/Receive/Dispose of Stolen Goods; Obtain Property by Deception; and Supply Identity Information with the intent to Commit or Facilitate an Indictable Offence (GD, p 52). On 11 August 2014 he was convicted of these offences before the County Court of Victoria and sentenced to a Community Service Order (CSO) for a period of two years and 300 hours of community service. Before the Tribunal was a Victorian Department of Justice report that the Visa Applicant’s CSO had been discharged as satisfactorily completed (GD, p 63).
In her sentencing remarks, Her Honour Judge Gaynor relevantly said (GD, pp 58-59):
The prosecution submission was that I should deal with you by way of a sentence of imprisonment to be immediately served. Ordinarily, this is the expected response by a court to this type of offending. It is extremely serious to engage in producing false identification so that other people’s moneys, other people’s credit, other people’s bank accounts, can be accessed.
Her Honour then referred to a victim impact statement by a person who had $20,000 removed from his bank account by Dawn-Manuel and how it had affected him:
This is a most unsurprising response, to know that your finances are available to be plundered as Mr Dawn-Manuel did, and this was an enterprise in which you assisted him and enabled to do. To carry out such criminal acts is to strike at the normal person in the community’s sense of security about the banking system which affects everyone. The sorts of criminal activity you are involved in affected people who could ill afford to lose the moneys stolen from them, essentially by Dawn-Manuel. It was thoughtless, damaging offending. The courts are bound to protect the banking system and to punish persons who seek to exploit it, who seek to essentially steal from other people on a grand scale, in a very stern manner.
However, as I have said, I am satisfied that you are remorseful for your offending and I note you have no prior convictions, although there is one small matter yet to be determined by the Magistrates’ Court, relating to you failing to declare batteries were included in a package of electronic goods you were sending overseas. Otherwise you have gone on to continue your studies and I accept you are a gifted young man with a bright future ahead of him, who however needs to take away with him a great sense of shame about what you have done. Not just because what you did was dishonest but that because you were exploiting innocent people in the community, causing them enormous stress, and that you have caused a great deal of damage to other people’s lives.
I am not satisfied, however, that sentencing you to a term of imprisonment is the only sentence available to me. I am satisfied you have good prospects of rehabilitation and I do accept that on balance it is unlikely that the courts will see you before them again. Certainly I am prepared to give you an opportunity, Mr Nguyen, and to that end I have had you assessed for suitability for a CSO, and you have been found to be suitable. Again however, and you really need to think about this, your actions were callous and selfish and you have done, as I have said, a great deal of damage. The courts would not tolerate any repeat offending by you. If you were to appear again before a court on any charge of dishonesty you could confidently expect to be sent to gaol.
You have been found suitable for placement on a CSO. I note also that you were not the principal architect of this deceptive scheme, although you were an assistant in it. I do accept ordinarily you would be an honest young man but you have strayed very far from the path, and you are quite right I am sure, in realising that your family would be devastated and ashamed were they ever to discover the dishonest way in which you have betrayed their trust, and betrayed the trust of the Australian community which granted you a visa to study here.
Therefore, Mr Nguyen does not have a ‘substantial criminal record’ because he has not been sentenced to a term of imprisonment of 12 months or more. There is no evidence before the Tribunal that he has committed any immigration detention offences relevant to ss 501(6)(aa) and (ab) of the Act. There is no evidence before the Tribunal that the provisions of s 501(6)(b) (membership of, or association with, a group or organisation) are relevant. There is no evidence that s 501(6)(ba), which relates to people smuggling, trafficking in persons, crimes of genocide, crimes against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of international concern, is relevant.
There is also no submission before the Tribunal, or evidence, that the provisions of ss 501(6)(d)(ii),(iii),(iv), or (v) of the Act are engaged in this matter. There was no submission from either party that Mr Nguyen has any foreign convictions which might invoke s 501(6)(f) of the Act. Before the Tribunal was a Justice Record from the Vietnam Department of Justice dated 28 May 2021 with a certified translation (GD, pp 190-191). That certificate declared no criminal record in relation to Mr Nguyen in that country. Finally, the Respondent did not submit that ss 501(6)(g) or (h) are engaged.
The Applicant contended that the Tribunal should be satisfied that Mr Nguyen passes the character test (ASFIC, p 6). The ASFIC submitted that the evidence must suggest more than a minimal or remote chance that the person, if allowed to enter and remain in Australia, would engage in conduct specified in s 501(6)(d) of the Act and that it is not sufficient to find that the person has engaged in conduct specified in s 501(6)(d) in the past; there must be a risk that he will engage in such conduct in the future.
The ASFIC noted that Mr Nguyen has never been charged with or convicted of any offence in Vietnam and the only criminal record in Australia are the two sets of offences finalised in August 2014 in the County Court of Victoria and the Magistrates’ Court of Victoria (GD, p 54).
Mr Mulligan submitted that Mr Nguyen made immediate admissions regarding his offending, provided several statements to police which were then served in the co-offender’s brief of evidence, gave a commitment to give Queen’s evidence against Dawn-Manuel and attended his co-offender’s hearing where, in the event, Dawn-Manuel pleaded guilty, so Mr Nguyen’s evidence was not required.
Mr Mulligan noted that the Visa Applicant was aged only 23 at the time off the offending and was immature and that his offending was ‘in some part’ a product of being in a dire financial position. The ASFIC also quoted the sentencing Judge’s remarks on his good prospects of rehabilitation and that the greater criminality in the offending was that of his co-accused, and that Mr Nguyen was not the ‘principal architect of [the] deceptive scheme’.
In respect of the conviction and fine for carrying dangerous goods on board an aircraft (i.e. batteries), Mr Mulligan noted that Member Hughes found in Re:Nguyen v Minister for Immigration and Border Protection [2016] AATA 580, at [33] that this offence is “not indicative in isolation of bad character”.
The Respondent in written submissions contended that the Visa Applicant does not pass the character test because there is a greater than minimal or remote chance that he would engage in criminal conduct in Australia if he were allowed to return to this country. Mr Brown submitted that the ‘probabilistic assessment’ requires that the Tribunal consider ‘a range of inputs which fall short of criminality but [which] may still rationally bear on the assessment of whether a person “might” engage in criminal conduct in Australia’ (citing Perry J in EPU19 v Minister for Immigration, Citizenship, Migrant, Services and Multicultural Affairs (No 2) [2021] FCA 1536).
Decision on the character test
The Tribunal comes to the same conclusion as Dr Hughes did in 2016 in regard to the battery offending. It was reckless, rather than illustrative of calculated criminality. However, in regard to the other offending, where Mr Nguyen acted as a willing assistant to Dawn-Manuel, I do not accept the submissions that attempt to clothe all of that conduct around Mr Nguyen’s age, immaturity or temporary money pressures. He did not act on impulse and ordered components from a US-based website in order to make the fake licences. He hid what he was doing from Ms Trinh, who resided in the same house at that time. He produced around 100 licences; his evidence was that they were duplicates using maybe three or four photographs, but that does not really matter when they were then to be used for fraudulent purposes. This offending was serious, carried out over a sustained period of time, and motivated – by Mr Nguyen’s own admission – by greed.
The Visa Applicant admitted he continued to study in breach of a ‘no study’ condition on his then visa. While the Tribunal understands the position Mr Nguyen faced: a desire to finish his master’s degree before he departed Australia, it does show a willingness to flout immigration conditions he readily knew applied to him.
Because of his criminal conduct and his breach of known visa conditions, the Tribunal is satisfied that there is more than a minimal chance the Visa Applicant would engage in criminal conduct if he were allowed to re-enter Australia. Accordingly, the Tribunal finds that Mr Nguyen fails the character test.
Having decided that the Visa Applicant does not pass the character test, the discretion available in s 501(1) is enlivened for his visa to be refused. Whether it should be refused must be considered consistent with the considerations stipulated for decision-makers, including the Tribunal, in the ministerial Direction.
APPLYING THE DIRECTION
The Direction requires the Tribunal to consider five primary considerations, as relevant to an applicant. It also lists four other considerations that, if relevant, must be addressed but makes clear this is a non-exhaustive list. The Tribunal should consider any other matter which is consistent with the purposes of the Act.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct

The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Applicant has committed no crimes in any of these categories. His criminal offending relates to crimes of dishonesty, fraudulent identity and, in the case dealt with in the lower court, an offence relating to the carriage of a prohibited good.
The Tribunal must consider whether the non-citizen’s offending is directed at vulnerable members of the community. There is no evidence of that; it is important in this consideration to distinguish between the actions of the principal offender, Dawn-Manuel, in taking funds from people’s bank accounts. Mr Nguyen was not responsible for this, but he was, in the words of the sentencing judge, an ‘assistant’ which effectively enabled this wider offending because of his role in fabricating fake driver licences.
The Tribunal must consider the frequency of the offending, any trend of increasing seriousness and the cumulative effect of repeated offending. In this case, the main offending was concentrated in a particular period. However, it involved an element of subterfuge including, in his oral evidence, an admission from Mr Nguyen that he hid what he was doing in manufacturing the fake licences in his room from the Review Applicant (and presumably other occupants of the house where they lived). It was therefore a deliberate set of activities motivated, by his frank admission, by greed. I reject the suggestion in the ASFIC that the amount Mr Nguyen was paid for legitimate employment at the time was low and this fact should be viewed as some mitigating factor in terms of his criminality. If a person is short of money that does not necessarily lead to the person committing acts of dishonesty. The Tribunal finds there is no trend of increasing seriousness, nor a particular effect of cumulative offending.
The Tribunal must take into account that, in spite of the submissions made by the Crown, the sentencing Judge decided that a term of imprisonment was not on balance warranted and that a CCO would suffice. Her Honour based this decision principally on the fact of no criminal history and good prospects of rehabilitation, as well as an early admission of guilt.
Nonetheless, the Tribunal finds that the offending was relatively serious, mainly because it directly facilitated the Visa Applicant’s co-offender to execute more major and damaging frauds on the finances of other persons through identity-theft. It is not plausible that the Visa Applicant did not know the improper purposes that the fake licences he was manufacturing would be put.
The Direction also requires the Tribunal to consider whether the Applicant has committed any offences in immigration detention, or whether he has offended after being warned in writing or another way by the Department of the potential effect on his migration status. There was no evidence of offending in detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2) of the Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that.
There would be a risk to the Australian community if the Visa Applicant resumed offending in the same manner. As the judge said, a direct consequence of identity theft is that it allows the undermining of Australia’s banking system and is a facilitator to financial theft on, in Her Honour’s words, a ‘grand scale’.
The Tribunal had before it a report of Mr Jeffery Cummins dated 19 October 2022 (Exhibit A1). Mr Cummins also gave oral evidence. Mr Cummins in his report wrote (paras 45 to 49):
Having conducted a rigorous assessment of Mr Nguyen, it is my opinion the offending which was dealt with by Her Honour Judge Gaynor on 11/8/2014 was out of character for Mr Nguyen and reflective of naivety and immaturity (in particular, psychosocial immaturity) on his behalf. Further, that offending was partly motivated by a desire on his behalf to make more money against a background where since arriving in Australia in 2009 he had been subject to financial distress, although he had been provided with some financial support from an aunt (for which he expressed gratitude). He accepts he continued offending under circumstances where he became financially greedy, to the point where he was obsessed with making money.
In my opinion he is genuinely remorseful and rigorously so regarding the offending that was dealt with by Her Honour Judge Gaynor, as well as regarding the offending that was dealt with at the Magistrates’ Court. In my opinion he is embarrassed and feels shameful regarding his offending…
As the courts are aware, making risk assessments in relation to a person’s propensity to commit a criminal offence is not easy or straightforward. However, based upon all of the information that is available to me concerning Mr Nguyen, it is my opinion his risk for committing a further offence is Low – which is equivalent to a negligible risk. In my opinion, he offended at a time when he was a young adult and his now some ten years or so older and he has been in no further trouble with the law.
Based upon his comments at interview on 6/10/2022, he is very motivated to return to Australia. At interview he disclosed feeling depressed and worrying excessively regarding the prospect of never being permitted to return to reside in Australia. He stated he wants to make Australia home, as this was always his intention when he initially entered Australia in April 2009. He stated he now feels additionally guilty because he feels he is depriving his daughter and his wife of a better future – which he believes they would have if the family unit was able to relocate to Australia.
In expressing the above opinion regarding my assessment of Mr Nguyen’s risk for committing a further criminal offence, I emphasise that he has never had a problem with gambling, alcohol, prescription medications, or illicit drugs. Further, in my opinion he does not suffer from any personality disorder and has never suffered from any major mental health condition which may or could interfere with his ability to live a law [-] abiding life.
(Emphasis added.)
In his oral evidence Mr Cummins agreed that the Visa Applicant said the motivation of his offending was greed. He said that while Mr Nguyen was intelligent, he was naïve at the time of his offending. When asked whether his present age, the fact that he is married and has become a father would have an impact on his risk profile, Mr Cummins responded, “For many people, it has a positive impact. I formed the view of that in relating to Mr Nguyen. He spoke in positive terms of being a father and wanting to re-locate.”
Under cross-examination, Mr Brown noted that Mr Cummins’ conclusion that the offending was ‘out of character’ was formed based on a single interview. He responded, “He regarded himself as a moral person. He judged himself harshly. Many people I see have a criminal outlook – I did not form that view here. I do not think he has an antisocial personality disorder. His initial offending was opportunistic and situationally motivated. I formed the view that greed was applicable.”
Mr Brown asked Mr Cummins whether he was aware that Mr Nguyen pursued his master’s degree studies in breach of a ‘no study’ condition on his visa. He said he was not. The Tribunal asked the witness whether his conclusions would change now he had that knowledge. He responded, “I agree with the Respondent that it does impact on the level of risk. But how it would impact I can’t answer without being able to question him.” Mr Cummins agreed that he would need to revisit this question.
In his closing submissions on behalf of the Minister, Mr Brown submitted that there was an element in the Visa Applicant’s behaviour of ‘instrumentality’ – that if he wants to do something he will do it, without regard for the rules or obligations. He submitted that this colours the risk of reoffending and that Mr Cummins had ‘walked back’ from his written opinion on risk assessment.
The Respondent accepted that Mr Nguyen was not the principal offender, but asserted he was a major contributor: he purchased equipment, including a laminator and a special tray in order to print laminated cards.
The Tribunal considers that there is a low risk of reoffending but does not agree with Mr Cummins that this equates to a ‘negligible’ risk. The Concise Oxford Dictionary definition of the word ‘negligible’ is something that is so small as that it need not be regarded. That cannot be the case here, with the Applicant’s criminal record. His offending may have been situational, but it was not spur-of-the-moment, and involved purchasing equipment from overseas in order to create the fake driver’s licences. The Tribunal accepts that the Visa Applicant is now ten years older, has a settled home life and has become a father. The Tribunal accepts that his expressions of remorse appear genuine. However, his plans for employment in Australia appear somewhat sketchy and, if he found himself under financial pressure, there is some risk, even if it is a low risk, that he would return to committing acts of dishonesty. He admitted that he made around $10,000 last time he did. Nonetheless, there are protective factors, including no criminal history of the Review Applicant, fatherhood, and a genuine desire to make a new life in Australia. All of these I am satisfied support a finding of a low risk of reoffending, but not a negligible risk.
Overall, the Tribunal finds that this primary consideration relating to the protection of the Australian community weighs against granting the visa. Mr Nguyen acted dishonestly over a period of time, with premeditation, and facilitated a co-accused in major financial offending. However, the weight is not heavy because of the finding about the unlikelihood of re-offending.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent conceded this consideration is not engaged because there is no evidence of any relevant offending or other conduct committed by Mr Nguyen.
The Tribunal finds that this primary consideration weighs neutrally.
Primary consideration: The strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
The Review Applicant has now settled in Australia, invoking her skilled visa which is a permanent visa. Her and the Visa Applicant’s minor daughter accompanied the Review Applicant to Australia and a child visa is in the process of being sought for her.
The Tribunal must have regard to the fact that Ms Trinh and their daughter are now in Australia, but that is a recent occurrence and is the result of a deliberate decision by Ms Trinh, in the knowledge that the prospect of Mr Nguyen being granted a provisional partner visa was completely uncertain. It is acknowledged that the Review Applicant and the Visa Applicant have purchased a residential property in Melbourne and that there was some time element in Ms Trinh’s decision, because her skilled visa would expire if she arrived in Australia after 22 June 2024. However, at the same time, she has been prepared to make this significant decision to separate the family without any surety of Mr Nguyen being granted a visa, in the knowledge that it had been refused by a delegate of the Minister.
Some time was spent by the Respondent during oral evidence questioning Ms Trinh about why she answered ‘no’ to the question on her own visa form about whether she was in a relationship. She said she and Mr Nguyen had had an argument at the time and had separated. Mr Brown noted this appeared at odds with other statements she and the Visa Applicant had made at this same time about having photographs taken for their forthcoming wedding, going on a vacation together and holding a family event in celebration of the forthcoming marriage. Overall, I found some of Ms Trinh’s evidence in this aspect unsatisfactory but not so as to undermine my conclusion that her and the Visa Applicant’s relationship is not genuine and enduring.
The Tribunal takes into account that Mr Nguyen lived in Australia for some nine years, and studied successfully at undergraduate and postgraduate level here. He made some contribution to the national economy through the part-time legitimate jobs he undertook. However, any positive contribution so far made is, in the Tribunal’s view, largely overshadowed by his criminal offending. The Visa Applicant has an aunt in Australia, but there was no particular evidence about how she would be affected if the visa refusal decision were to stand, acknowledging this aunt did in the past advance him some initial financial support when he was studying.
The Respondent contended that the Visa Applicant was not in Australia in his formative years but accepts that he has a number of friends in Australia and does not minimise these social linkages. The Respondent noted that, while Mr Nguyen lived in Australia for around nine years, he commenced offending within two years of his first arrival.
The Tribunal finds that this consideration weighs slightly in favour of granting the visa, but not decisively so.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.4)
Both the Applicant and Respondent in written submissions contended this primary consideration was not relevant. However, as it transpired during Ms Trinh’s oral evidence that she had recently relocated to Australia with AD, the Tribunal noted this fact renders the consideration now relevant. Parties agreed and made oral submissions on the matter.
Mr Mulligan submitted that Ms Trinh would struggle raising AD by herself and that there was some evidence that she had suffered from postpartum depression. He submitted that it was in the best interests of the infant child of the Visa Applicant that the visa be granted.
Mr Brown submitted that this is not a case where the decision of the Tribunal will case a child to be separated from a parent, because that decision has been independently made by Mr Nguyen and Ms Trinh in the knowledge that the review of the delegate’s decision was still to be considered by the Tribunal. Mr Brown submitted that the decision appears to be a ‘strategic move’ on behalf of the parents, but the Respondent nonetheless accepts that this primary consideration weighs in favour of the Visa Applicant, but in a limited way because of the circumstances surrounding the relocation. He said that it was a voluntary decision made by the parents in the full knowledge that Mr Nguyen had no right to enter Australia. Mr Brown said the Minister accepts that the relationship between the Visa Applicant and AD appears to be genuine and noted that his inquiries of the Minister’s Department revealed that a child resident visa had been lodged three weeks before the hearing, on behalf of AD.
The Tribunal accepts the Minister’s submissions that it was a voluntary decision by the parents to separate AD from him with no knowledge of if he would be granted a visa. This does dilute the weight in favour of the best interests of Mr Nguyen’s and Ms Trinh’s daughter having her father in this country.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A past version of the Direction contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; in other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may try to derive by some other evaluative or balancing process.
The current Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would incline slightly against the Applicant. His involvement in preparing fake documents and being an ‘assistant’ to more major financial offending was serious, especially as he was on a temporary visa at the time. The Tribunal takes the view that the conviction and fine for sending batteries on an aircraft was in the nature of a reckless offence, and does not particularly indicate criminal motivation. There was some suggestion by the Visa Applicant that he contacted a transport company to clarify whether consigning batteries was acceptable, but there was no corroboration of this.
However, there has been no further offending by Mr Nguyen since September 2013. That is now almost a decade ago. Mr Nguyen pleaded guilty to the charges and completely fulfilled the community obligation imposed by the Court in around ten months. As set out above, there is no record of prior or subsequent offending in his home country.
This primary consideration weighs very marginally in favour of refusing the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
This part of the Direction concerns the liability for an illegal non-citizen to be removed from Australia and, if relevant, any protection finding in relation to a person which may invoke Australia’s international treaty obligations. Both parties submitted that this is not relevant.

The Tribunal finds that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. This is not relevant because Mr Nguyen is currently resident in Vietnam, his country of birth and citizenship.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim (being a member of the Australian community) of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. There was no evidence before the Tribunal of any quantifiable impact on victims, having noted above the remarks of the sentencing Judge focussed on some of the consequences to victims of Dawn-Manuel’s subsequent criminal acts, albeit some of those assisted by the creation of the fake driver’s licences by the Visa Applicant.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Impact on Australian business interests (paragraph 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 would significantly compromise the delivery of a major project or important service in Australia.
There is no indication this is relevant to Mr Nguyen. In his oral evidence he said that he has some Australian clients in his current work in Vietnam, but he clearly services them offshore, so no impact by any decision of the Tribunal in this matter is identifiable. Mr Nguyen said his plan if he granted a visa is to consider further postgraduate study and look for employment.
The Tribunal finds that this consideration weighs neutrally in this assessment.
SUMMATION - SHOULD THE VISA BE REFUSED?
Of the five primary considerations in the Direction, the family violence primary consideration is not relevant. The primary consideration relating to the protection of the Australian community has been found to weigh slightly against granting the visa, but weight is limited because of the low risk of reoffending found. The primary consideration relating to the strength of ties with Australia weighs slightly in favour of granting the visa. The primary consideration relating to the best interests of minor children in Australia weighs in favour of the Visa Applicant, but that weight is tempered for the reasons outlined above. The primary consideration relating to the expectations of the Australian community weighs slightly against granting the visa.
Of the other considerations set out in the Direction, none has been found to be engaged and each therefore weighs neutrally. The Tribunal is not constrained only by the considerations stipulated in the Direction but does not find any other relevant matter is germane to this merits review.
The Tribunal, in weighing all the relevant considerations, has decided that the discretion to refuse the visa should not be exercised. The Applicant does not present as a habitual criminal. He entered into a series of criminal acts designed to make quick and easy money. He was young and, I accept, immature. Since then he has returned to Vietnam, maintained a good working history, married and become a parent. He has not committed any further offences of any kind. His wife has been granted a skilled visa on the basis that she has skills which are of benefit to Australia. She has settled in Australia with their young daughter. The Tribunal accepts that the visa being sought by the Visa Applicant is a provisional one, but that there is an established pathway to a permanent partner visa for Mr Nguyen. Mr Nguyen has not reoffended since 2013. The likelihood of him reoffending is relatively remote. If he did, he knows the likely immigration consequences.
Although the Tribunal has found that Mr Nguyen does not pass the character test, I am satisfied that the preferable decision in this matter is that the discretion available in s 501(1) of the Act should not be exercised to refuse the Visa Applicant the visa.
DECISION
The Tribunal sets aside the decision dated 12 April 2023 to refuse the Applicant a Partner (Provisional)(Class UF) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Act should not be exercised to refuse the visa.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[SGD]......................................
Associate
Dated: 14 August 2023

Date of hearing:

6 - 7 June and 10 – 11 July 2023

Review Applicant:

Anh Nguyen Trinh

Counsel for the Review Applicant

Solicitors for the Review Applicant

Mr David Mulligan

JLE Lawyers

Advocate for the Respondent:

Mr David Brown

Solicitors for the Respondent:

The Australian Government Solicitor

Annexure – List of exhibits
Volume of ‘G’ documents (‘GD’)  Exhibit R1
Volume of supplementary ‘G’ documents  Exhibit R2
Report of Mr Jeffrey Cummins dated 19 October 2022  Exhibit A1
Witness statement Anh Nguyen Trinh, 12 May 2023  Exhibit A2
Witness statement Hoang Duy Nguyen and attachments                Exhibit A3
12 May 2023
Witness statement Tam Thanh Nguyen, 12 May 2023  Exhibit A4
Witness statement Thi Kim Lien Vo, 12 May 2023  Exhibit A5
Witness statement Trung Hieu Nguyen, 12 May 2023  Exhibit A6

[2023] AATA 2538

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	6 - 7 June and 10 – 11 July 2023
Review Applicant:	Anh Nguyen Trinh
Counsel for the Review Applicant Solicitors for the Review Applicant	Mr David Mulligan JLE Lawyers
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	The Australian Government Solicitor