FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1107

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The amended originating application dated 24 June 2022 be dismissed.

3.    The applicant pay the first respondent’s costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of a Bridging E (Class WE) visa (BVE) to the applicant, Mr Ngoc Nhi Nguyen, upon the ground that he did not satisfy the character test in s 501(6) of the Migration Act 1958 (Cth). Failure to satisfy the character test enlivened the discretion to refuse the grant of the visa. The Tribunal decided that the discretion should be exercised against the grant of the visa.

2    This proceeding was initially commenced in the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, but was transferred to this Court. The applicant moves on an amended originating application dated 23 June 2022, but does not press grounds 2 and 3, leaving grounds 1 and 4 to 7 for determination.

3    At the outset, the Court gratefully acknowledges Ms Mills for agreeing to appear as pro bono counsel for the applicant.

Background

4    Mr Nguyen, now in his early 30s, is a citizen of Vietnam. He came to Australia in February 2014 on a student visa when he was 22. He met his future wife, an Australia citizen, in June 2015 and they formed a relationship. They married in February 2017. In May 2017, he applied for a temporary partner visa and a permanent partner visa on the basis of his marriage and on the same day was granted a bridging visa.

5    Mr Nguyen’s wife gave birth to their daughter in December 2019. However, prior to that, in July 2019, Mr Nguyen was convicted by the Magistrates’ Court of Western Australia of charges of unlawful assault and thereby bodily harm with circumstances of aggravation, threaten to kill, and criminal damage or destruction of property, all directed to his wife. Those offences took place in May 2019. Mr Nguyen was sentenced to a 15-month intensive supervision order with a condition that he attend mandatory domestic violence and psychological counselling.

6    The agreed facts read out at the sentence hearing were recorded by the Tribunal at [98] as follows:

At about 3 am on Monday 20 May 2019, the accused was at [address]. The accused and the victim are husband and wife and have begun – have been in a relationship for the past three years, and lately have been estranged. Recently, the victim has begun a relationship with a new partner.

…

The victim is currently pregnant with the accused’s baby. On the night of the incident, the accused was staying at the victim’s address, and they were sharing a common bed. While the victim was asleep, the accused assessed the victim’s phone and viewed text messages and intimate photos of the victim and her new partner.

The accused became angry and woke the victim, asking questions about her new partner, becoming progressively enraged as he did. The victim sat up in bed and the accused reached out and grabber [sic] around the neck multiple times to the left -hand side of the face while yelling “I’m going to kill you.” The victim's cousin, who was also present, came into the bedroom and the accused walked out. The victim”s cousin locked the door behind him.

The accused returned and yelled “if you don't open the door, I’m going to kill you both.” The accused went to the kitchen and grabbed a bread knife and a kitchen knife and began cutting into the door with both knives. The victim could see the end of the knives penetrating the door, when he made a big enough hole he reached through the and opened the door. The accused entered the bedroom and held one of the knives to the victim’s throat, stating, '”this might be my baby, so I will not kill you this time. But I will kill you slowly.”

The accused lowered the knife and began repeatedly slapping the victim before sitting on the floor and yelling at the victim. The accused eventually left the room and called a relative of the victim, stating “I’m going to kill her.” The victim’s relative called police who attended a short time later and arrested the accused at the scene, where he was conveyed to Mirrabooka Police Station. He took part in an interview and he made full admissions to the offence.

7    In September 2020, a delegate of the Minister cancelled Mr Nguyen’s bridging visa, which meant that his partner visa application was taken to be refused. Later that month, he applied for a Bridging E visa on the basis that he had a merits review application pending at the Tribunal for revocation of a visa cancellation. In October 2020, Mr Nguyen was taken into immigration detention and has remained there ever since.

Before the Tribunal

8    On 3 June 2021, the Tribunal affirmed the delegate’s decision to refuse the BVE. In reaching that conclusion, the Tribunal was not satisfied that Mr Nguyen passed the character test in s 501(6)(d)(i), and in exercising the discretion to refuse the grant of the BVE, found that the considerations weighing against granting the visa outweighed those favouring it.

9    Section 501(6)(d)(i) relevantly provides that “a person does not pass the character test if … in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would … engage in criminal conduct in Australia”. In reaching those conclusions, the Tribunal had regard to the binding Direction 90 then in force, made by the Minister under s 499 of the Migration Act. The main effect of Direction 90 in relation to s 501(6)(d) is to provide for the assessment of risk in relation to future conduct. Annexure A to Direction 90 provides for the application of the character test, including as follows, directed specifically to s 501(6)(d)(i):

6 Risk in regards to future conduct (section 501(6)(d))

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.

(2)    The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

(3)    It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

(2)    The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

10    After detailing the background facts, the issues requiring determination, the Tribunal hearing, the material before the Tribunal, and the legislative framework (including Direction 90), the Tribunal turned to Mr Nguyen’s evidence, and also the evidence of the two witnesses called for him, in some detail. It then addressed the question of whether he passed the character test, including his submissions and those for the Minister.

11    The Tribunal’s conclusions on the character test were as follows:

[90]    The Applicant will not pass the “character test” if there is a risk that he would engage in criminal conduct if he were allowed to remain in Australia. The Applicant essentially contends that he passes the character test on the basis of favourable opinions and comments made by his various doctors and character referees, that he has completed the necessary rehabilitative courses and counselling and has demonstrated sufficient remorse and insight into his offending.

[91]    However, as the Respondent has highlighted, even by the Applicant's own evidence of his “low” risk of reoffending, he fails the test. The weight that can be given to these medical opinions and character references, in any event, is limited not only by the inaccurate and incomplete letters of instructions that were provided, but by the Applicant's incorrect historical narrative taken at the time of consultation and the fact that his referees had limited or no knowledge of the facts of his offending. Further, the matters raised in para [89] above, particularly:

(a)    the inconsistencies between accounts of events recorded by the police, given by the Applicant to the psychologists, his general practitioner and his contact officer regarding

•    his offending;

•    his mother's health; and

•    his siblings' locations;

and the Applicant's inability to satisfactorily reconcile or explain these matters at hearing;

(b)    the lack of any formal counselling undertaken by the Applicant and his belief that it was not required, despite his having violently offended in the midst of an “uncontrollable rage”;

(c)    the undercurrent of victim blaming that is woven throughout the Applicant's accounts of events, in relation to his own rationalisation of his criminal conduct, and throughout his character referees' claims as to the Applicant's good character; and

(d)    stemming from (b) and (c), the Applicant's wish to continue his relationship with his wife, where his and his wife's treatment needs appear to be unmet, the Applicant's belief that his treatment needs in fact have been met and he is rehabilitated and his knowledge that wife and daughter are now located in Perth,

along with the Applicant's assertion of remorse being limited to his statements that he had made a mistake and that family violence was “quite serious,” cause the Tribunal significant concern that the risk that the Applicant would engage in criminal conduct if he were to remain in Australia is real and not fanciful or remote.

[92]    In light of the above, the Tribunal finds that s501 (6)(d)(i) of the Migration Act is met such that it cannot be satisfied that the Applicant meets the “character test.” Therefore, the discretionary power to refuse the BVE in s501 (1) of the Migration Act is enlivened.

12    Mr Nguyen takes issue with the conclusions reached at [91] as to his character insofar as it is based upon his risk of future offending.

13    The Tribunal then turned to the exercise of the discretion and in particular to the four primary considerations mandated by Direction 90:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    whether the conduct constituted family violence;

(c)    the best interests of minor children in Australia affected by the decision;

(d)    expectations of the Australian community.

14    The Tribunal made findings in relation to the contested topic of protection of the Australian community, comprising the nature and seriousness of the conduct, the risk to the Australian community if there was reoffending in terms of harm, and the risk of that occurring again:

(a)    at [106], the Tribunal was satisfied on the material before it that the offending was very serious, as made clear by the sentencing magistrate’s comments, by the prosecution, and by Mr Nguyen himself despite his history of seeking to minimise the seriousness of his behaviour; and

(b)    at [114], the Tribunal found the nature of the harm from Mr Nguyen’s conduct in the commission of acts of family violence was very serious, evidencing a blatant disregard for the well-being of his wife who was pregnant at the time, and that the nature of the offending and his lack of insight into his need for treatment and rehabilitation demonstrated a degree of recklessness towards the wellbeing of the community that could not be tolerated or dismissed; and

(c)    at [120], the Tribunal found that by reason of conclusions already reached as to the risk of committing further offences as submitted by the Minister at [89], the matters described at [91] (reproduced above), and concerns about Mr Nguyen’s rehabilitation and the limited weight to be given to expert witness evidence due to incorrect and incomplete information provided to them, there was a moderate risk of him committing further criminal offences, particularly due to his oral evidence demonstrating a lack of insight into his past offending, and his understanding of his own rehabilitation being flawed and self-serving.

15    In relation to whether the past conduct constituted family violence, this was found by the Tribunal to be so after detailing what had taken place, and it weighed strongly against the grant of the BVE. This conclusion is not challenged by Mr Nguyen.

16    In relation to the best interests of minor children in Australia affected by the decision, this applied only in relation to Mr Nguyen’s daughter, with the Tribunal finding at [138] that her best interests would be served by him being allowed to remain in Australia, but that this was to be given limited weight due to the findings at [137] of violent conduct directed towards his wife, the low regard he has for his wife and her parenting ability, and the lack of evidence of his or his wife’s plans to care for their daughter should she not wish to reunite with him once a restraining order expired soon after the Tribunal’s decision. This conclusion is challenged by Mr Nguyen insofar as it relies upon the finding at [137], reproduced below, that there was a lack of evidence concerning his wife wanting to reunite with him.

17    In relation to the expectations of the Australian community, the Tribunal concluded that the expectation set out in [8.4] of Direction 90 that the community, as a norm, would be that the government not to allow Mr Nguyen to remain in Australia. That conclusion was arrived at having regard to the observations of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 as applied in prior Tribunal decisions, such that this weighed significantly against the grant of a BVE. The Tribunal rejected contrary submissions by Mr Nguyen. He does not challenge this conclusion.

18    Mr Nguyen’s challenge on the exercise of the discretion is directed to the assessment of his future risk of offending. In particular, he challenges aspects of the reasoning leading to the conclusion that he remained a moderate risk of committing further criminal offences, and therefore that the primary consideration of protection of the Australian community weighed heavily against the grant of the BVE.

19    The Tribunal then turned to other considerations also mandated by Direction 90, and made the following findings:

(a)    international non-refoulement obligations – this was found not to be applicable in this case;

(b)    the extent of the impediments Mr Nguyen would face if removed from Australia – at [153], the Tribunal considered that any difficulties he would face in re-establishing himself in Vietnam would be temporary, so as to be of neutral weight in the exercise of discretion;

(c)    the impact on victims – at [155], the Tribunal found that this did not arise on the evidence, so as to be of neutral weight in the exercise of discretion;

(d)    links to the Australian community having regard to:

(i)    the strength, nature and duration of Mr Nguyen’s ties in Australia – at [160], reproduced below, the Tribunal found that this factor weighed slightly in favour of the grant of a BVE, noting he started offending only several years after arriving in Australia as a young adult, his community contributions were positive but modest, and the nature of his relationship with his wife was at best unclear in the absence of corroborative evidence as to his assertions (that his wife wanted to reunite with him). It was noted also that he had cast his wife in a negative light, yet would have the Tribunal accept she is reliant on him financially and as a father figure in the future; and

(ii)    the impact on Australian business interests – the Tribunal found this was not applicable in this case.

20    Mr Nguyen takes issue with the conclusion at [160] that there was no corroborative evidence of his claim as to his wife wanting to reunite with him, being a parallel challenge to the finding at [111] on this topic, referred to above.

21    Mr Nguyen takes issue with a Tribunal finding at [111], reproduced below, leading to the conclusion on the nature of the harm from his conduct at [114], summarised at [14](b) above, to the effect that his hope to reunite with his wife was unsupported by any evidence of her shared wish to do so after him being legally restrained from contacting her by a restraining order that was in force between 12 June 2019 and 11 June 2021 (shortly after the Tribunal decision of 3 June 2021).

22    Thus, Mr Nguyen takes issue with the following intermediate findings in relation to the exercise of the discretion to refuse the grant of the BVE:

(a)    at [111], in relation to the nature of harm if Mr Nguyen was to reoffend:

The Tribunal also finds the Applicant's present hope to reunite with his wife, without having provided any evidence to the Tribunal of her shared wish to do so and after having been legally restrained from contacting her for some time unusual and demonstrative of the Applicant's lack of understanding of the serious impact his conduct may have had on her.236

236 In this regard, when asked about the future intentions of the Applicant and his wife at hearing, the Applicant stated that once the restraining order expired he would talk to his wife, repay his previous mistake and endeavour to rekindle the relationship. However, the Applicant later stated that he knew his wife shared his wish to reunite as he had talked to his sister in law about it. Therefore, not only did his evidence differ in relation to his further intentions, there is no independent evidence from the Applicant's wife or from the Applicant's sister in law on those matters. See Respondent's written closing submissions at [10].

(b)    at [137], in relation to the best interests of his daughter, and the reference at (c) to the issue of him reuniting with his wife (omitting footnotes):

As to the extent to which the Applicant would play a positive parental role in the future, while the Applicant’s daughter is still of infant age and there is a considerable amount of time before she turns 18 years of age. However, the Tribunal has considerable concerns over the negative impact of his past conduct (and likely future conduct) on his daughter, given:

(a)    the violent conduct directed towards his wife;

(b)    the low regard with which he views his wife’s parenting ability and her generally as a person who, for example, is crazy, always complains and is nonsensical; and

(c)    the lack of evidence of the Applicant's or his wife’s plans for the care of their daughter, should his wife not wish to reunite with him following the expiry of the restraining order.

(c)    at [160], in relation to the strength, nature and duration of Mr Nguyen’s ties in Australia, and the reference to the present nature of his relationship with his wife being unclear:

The Tribunal has considered the evidence and the parties' related submissions. The Applicant started offending only several years after his arrival to Australia as a young adult. The Applicant’s community contributions are positive but modest. The strength and present nature of the Applicant's relationship with his wife is, at best, unclear in the absence of corroborative evidence. Further, the Applicant has cast his wife in a negative light on several occasions, yet he would like the Tribunal to accept she is reliant on him financially and as a father figure in future. The Tribunal is of the view that, therefore, this factor only weighs slightly in the favour of the grant of the Applicant’s BVE.

Relevant and irrelevant considerations

23    A number of grounds of review assert error on the part of the Tribunal by either failing to take into account relevant considerations or taking into account irrelevant considerations. Before considering those and other grounds in more detail, it is convenient to identify the metes and bounds of that kind of alleged error going to the exercise of jurisdiction. It has been commonplace to refer to these two grounds as mandatory relevant considerations and forbidden irrelevant considerations. The addition of the words “mandatory” and “forbidden”, is something of a public law tautology, because that concept is built into the meaning of “relevant” and “irrelevant” in a public law sense, as the lengthy quote from Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 in the following paragraph demonstrates. But the deployment of that tautology is a useful way of emphasising that the issue is not one of relevance in the sense used in ordinary parlance, but rather whether a decision-maker is required in the exercise of jurisdiction to have regard to a particular consideration, or required not to have regard to a particular consideration.

24    One of the most commonly cited, and clearly expressed, explanations of relevant and irrelevant considerations is by Mason J in Peko-Wallsend at 39-41 (omitting only citations and quotes; emphasis in original):

(a)    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

(b)    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. …

(c)    Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …

(d)    The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned …

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.

25    It follows that in order to succeed upon a ground of failure to take into account a relevant consideration, or a ground of taking into account an irrelevant consideration, more than an assertion of general relevance or general irrelevance in the evaluative sense is required. That lesser degree of consideration or non-consideration is a matter for the decision-maker, subject to the general requirement to consider claims that are in fact made and submissions that are in fact advanced. For relevant or irrelevant considerations, what must be shown by the express words of the legislative scheme, or some particular feature of it, or by necessary implication, is that the element of compulsion or proscription is present.

26    The considerations that are relevant or irrelevant to a decision made under the Migration Act, in the sense of being mandatory or forbidden, are primarily, perhaps even entirely, determined by reference to that Act (including aspects of Direction 90 because it is made under s 499 of that Act), rather than by the particular facts of the case under consideration: see Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 at [8]-[10], and the cases cited and quoted of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73]-[74] and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [123] per Allsop J (as the Chief Justice then was, with Moore and Tamberlin JJ agreeing).

27    The now Chief Justice also observed in NADH:

(a)    at [10], that reviewable error “by reason of failing to take into account relevant considerations, or taking into account irrelevant considerations, is an error that arises as a matter of law, rather than an error that is centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts” and;

(b)    at [11], that the weight to be given to matters regarded as material by a Tribunal is a matter for it to determine.

28    In a case such as this, where s 501 of the Migration Act is broad and unconstrained, the question of relevant or irrelevant considerations largely falls to the terms of Direction 90, binding on delegates of the Minister and on the Tribunal, which contains both guidance and some indication of what must be considered, but little or nothing to indicate anything being proscribed. If that is not achieved, other hurdles for establishing jurisdictional error must be surmounted, such as those for legal unreasonableness.

29    The burden of the above is that outside the terms of a direction such as Direction 90, it is generally going to be difficult to characterise any material before the Tribunal as being something that it is compelled or forbidden to consider, and if jurisdictional error is sought to be established, grounds of relevant or irrelevant considerations may not be able to be established.

Illogicality or unreasonableness

30    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ held that a logical or rational decision-maker could have come to the same decision as the impugned Tribunal decision, reasoning as follows:

(a)    as part of [131]:

… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(b)    at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

31    In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109, the Full Court at [45] reproduced the above quote from SZMDS at [135], at [46] observed that the other member of the majority, Heydon J, came to the same conclusion that the Tribunal’s reasoning was not illogical, and at [47] observed that subsequent authorities, which were cited, had established that:

… for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

Ground 1 – taking an irrelevant consideration into account as to the lack of evidence from the applicant’s wife; or unreasonableness or illogicality in making findings as to his relationship with his wife and related findings

32    This ground is directed to the intermediate findings made by the Tribunal on the topic of Mr Nguyen’s relationship with his wife and his assertion that she wanted to reunite with him, at [111], [137] and [160], reproduced above. The kernel of his complaint is that the Tribunal took into account what it found was the absence of evidence from Mr Nguyen’s wife in determining whether the discretion should be exercised to refuse to grant the BVE, which is characterised as being an irrelevant consideration, or alternatively as unreasonable or illogical.

33    The argument advanced by Mr Nguyen is as follows:

(a)    on 12 June 2019, a two-year restraining order was issued against him, naming his wife as the protected person, with an end date of 11 June 2021, eight days after the Tribunal decision, so it was in force at all times when the application for merits review was before the Tribunal;

(b)    the restraining order provided that he “must not …except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means” with Part B permitting contact via an Australian legal practitioner, via a process server serving legal process, or participating in court proceedings as parties or witnesses, and to comply with any court order or direction;

(c)    he was therefore “prevented from having conversations with his wife about their plans for the future including her desire to reunite with him and their plans to care for their daughter in the future [and] was similarly prevented from asking his family members, or his wife’s family members, to ask his wife about such matters”;

(d)    by taking into account the lack of corroborative evidence provided by his wife, in circumstances where he was prevented from communicating with his wife about such matters, the Tribunal considered an irrelevant consideration;

(e)    by finding that the applicant’s hope to reunite with his wife was demonstrative of his lack of understanding of the serious impact his conduct may have had on her, the Tribunal was unreasonable, irrational or illogical, as the applicant was justified in his belief that his wife wanted to reunite with him;

(f)    further, the Tribunal failed to consider relevant considerations being other corroborative evidence of his wife’s intentions to reunite with him, namely a translation of a “letter of requirement” from his wife addressed to the Visa and Citizenship Section of the Australian Consulate-General dated 6 March 2020, which indicated that his wife intended to return to Australia and commence a business with her husband in accordance with a long-term plan, by stating “However, I need to get back to Australian on upcoming 26th March, 2020 to settle our work and life for my baby, as well as the business plan which I and my husband has prepared for a long time…”;

(g)    further, a report from Mr Jeffrey Cummins, a psychologist, dated 13 April 2021 stated that, via Mr Nguyen’s regular contact with his parents-in law and his wife’s siblings in Vietnam “he has been advised that his wife is desirous of resuming living with him in Australia”;

(h)    there is no reference in the Tribunal’s reasons to the 6 March 2020 letter of requirement, nor any reference to the other evidence which he describes as corroborative of his account of his wife’s wish to reunite with him other than the following exchange during the Tribunal hearing, where the issue of the lack of corroborative evidence regarding his wife’s intentions was raised with him:

MEMBER:    There’s no evidence… of any indication about your wife plans. So [how] does the tribunal know that your wife shares your wish to reunite?”

INTERPRETER:    My wife talk to my sister-in-law about she want, you know, back reunion. So my sister-in-law can clarify that.

MEMBER:    The sister-in-law is not giving evidence today and neither is your wife. Does Mr Nguyen accept there is no evidence before the tribunal about his wife’s plans?

INTERPRETER:    I did provide my sister-in-law’s phone number. I don’t know how come she is not her[e], yes – put it to the tribunal.

(i)    while the Tribunal did not have to refer to every piece of evidence (citing Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [103]), the finding that there was no corroborative evidence from his wife without reference to this evidence, ought be used as a basis for inferring that this evidence was not considered at all, citing Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34];

(j)    this is the only evidence of his wife’s intentions with respect to her relationship with the applicant continuing, such that, in the context of the Tribunal’s findings, it should be readily inferred that if the Tribunal considered this evidence at all, it would have been referred to in the reasons and if not accepted, then rejected or given little or no weight, again citing Ogawa at [103];

(k)    the Court should therefore find that the Tribunal failed to consider these relevant considerations;

(l)    alternatively, the Tribunal’s finding that there was no corroborative evidence with respect to his wife’s desire to reunite with him was one at which no rational or logical decision maker could arrive on the same evidence, and was illogical, irrational or unreasonable, citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131];

(m)    either error was material because there is a realistic possibility that, had this corroborative material been considered, the evaluation of the primary consideration of protection of the Australian community, and the other consideration of the strength, nature and duration of ties to the Australian community could well have been different in the sense of being more favourable to him, leading to a different ultimate result.

34    This ground must fail for the following reasons:

(a)    it has not been demonstrated beyond assertion why the absence of direct evidence from Mr Nguyen’s wife, which is what the Tribunal was referring to, was a consideration that was forbidden, and it is not otherwise apparent why that would be so;

(b)    to the contrary, when Mr Nguyen was asserting that his wife wished to reunite with him, the lack of direct evidence from her was clearly something that the Tribunal was entitled to have regard to;

(c)    that view is supported by the terms of Direction 90, which at [9.4.1(2)(b)] makes the “strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia”, being a category into which his wife fell, and it was therefore an aspect of a mandatory consideration, albeit secondary, necessarily directing attention to Mr Nguyen’s relationship with his wife and the material that was, and was not, before the Tribunal on that topic;

(d)    in any event, it was Mr Nguyen who advanced the topic of his wife wishing to reunite with him, such that the Tribunal was entitled, and perhaps even obliged, to evaluate that assertion;

(e)    in evaluating that assertion, the Tribunal was not obliged to refer to, or otherwise have regard to, secondary material on this topic, being:

(i)    a letter written by his wife to the Australian Consulate-General in Ho Chi Minh City on 6 March 2020 for the different purpose of getting her daughter’s visa application processed, and not in clear terms referring to reunification;

(ii)    an indirect assertion by his sister-in-law, whom the Tribunal also observed did not give evidence (at [111], when read with footnote 236, reproduced above); or

(iii)    comments he made to a psychologist as to being told by his parents-in-law and his wife’s siblings in Vietnam that his wife was “desirous of resuming living with him in Australia”, as being any substitute for direct evidence from his wife, even with the constraints on securing that evidence, if indeed it was available.

(f)    while another Tribunal might well have decided to give the other and lesser material weight or significance, there was nothing illogical or unreasonable in the Tribunal not referring to that material rather than the absence of direct evidence from Mr Nguyen’s wife;

(g)    nor is the characterisation of being illogical or unreasonable available in relation to the Tribunal’s reasoning that Mr Nguyen had a lack of understanding as to how serious his offending was in the absence of this direct evidence, which was plainly the most valuable and reliable given the inherent improbability that she would want to have anything to do with him given the extreme nature of his violent conduct towards her.

Ground 4 – taking irrelevant considerations into account in finding a risk of engaging in criminal conduct

35    This ground is directed to part of the Tribunal’s reasoning at [91(a)] being part of the reasoning leading to the conclusion at [92] that s 501(6)(d)(i) had been met, such that it could not be satisfied that Mr Nguyen met the character test. As reproduced above, that subparagraph was directed to inconsistencies in the evidence that had been identified by the Minister and accepted by the Tribunal. The inconsistencies referred to were between accounts of events recorded by police, given by Mr Nguyen to psychologists, from his general practitioner and from his contact officer regarding his offending, his mother’s health, his siblings’ locations, and also his inability to satisfactorily reconcile or explain these matters. Each of those issues were detailed at [89] as indicating at least a risk that Mr Nguyen would commit further offences. The Tribunal regarded these matters, together with the features identified at [91](b), (c) and (d), as causing significant concern that the risk that he would engage in criminal conduct if he were to remain in Australia was real and not fanciful or remote.

36    The argument advanced by Mr Nguyen is as follows:

(a)    whether he gave inconsistent evidence that was unable to be reconciled regarding his mother’s health and his siblings’ location was irrelevant to determining whether or not, in the event he was allowed to remain in Australia, there was a risk that he would engage in criminal conduct in Australia, in the sense of it being irrelevant to determining the threshold question of whether the character test in s 501(6)(d)(i) was satisfied, and that by taking such matters into account, the Tribunal erred;

(b)    had the Tribunal considered the remaining factors identified in [91](b), (c) and (d), without taking into account these irrelevant considerations, this could realistically have resulted in a different conclusion as to whether the character test was satisfied.

37    This ground must fail because it has not been demonstrated beyond assertion why the identified inconsistencies were irrelevant even in a general sense, let alone in the public law sense of being forbidden. The Tribunal was entitled to assess the veracity of the assertions that Mr Nguyen was making as to not reoffending, noting that credit assessments based on other matters are a legitimate forensic approach. The Tribunal was entitled to regard the inconsistencies identified as being substantial, such as a changing account as to whether his mother was alive or dead or unwell, and whether his siblings lived in the United States or Vietnam.

Ground 5 – jurisdictional error in finding that the applicant failed the character test in s 501(6)(d)(i)

38    This ground is directed to the Tribunal’s treatment of the evidence of the two psychologists relied upon by Mr Nguyen to demonstrate an absence of risk of reoffending. The argument advanced by Mr Nguyen is as follows:

(a)    the Tribunal concluded at [91] that even by his own evidence of his “low” risk of reoffending, he failed the character test in s 501(6)(d)(i);

(b)    this conclusion followed the Minister’s submission that his “own expert evidence from Dr Watts would, if accepted, result in him failing the character test”;

(c)    it is apparent that the Tribunal accepted this submission without evaluating Dr Watt’s opinion and without engaging in an evaluative judgment as to whether it was satisfied there was a risk that he would reoffend if he were to remain in Australia;

(d)    the Tribunal was provided with two reports by Dr Watts, who conducted a personality assessment and concluded:

(i)    at [21], that his personality profile was not suggestive of any domestic violence risk; and

(ii)    at [23], that his likelihood of further offending was relatively low and he showed no risk factors in terms of violence risk assessment;.

(e)    the Tribunal was also provided with a report by Mr Cummins, a counselling clinical and forensic psychologist, who assessed his risk of committing a further offence of violence, particularly domestic violence, using what he described as the current best practice assessment tool, on which his risk was assessed as being low, being the lowest available on a scale of low, moderate and high;

(f)    Mr Cummins also reported the opinion:

I am therefore of the opinion that the likelihood of recidivism on Mr Nguyen’s behalf is Low or, in the practical sense, minimal. I am of the further opinion Mr Nguyen does not pose any risk to the Australian community – which is the opinion I concluded as a result of reading the relevant documentation and assessing him on 7/4/2021.

(g)    it is apparent that the Tribunal failed to consider the above opinions of Mr Cummins and Dr Watts that the applicant’s likelihood of recidivism was “minimal”, and what they meant by a “low” risk, in concluding that on his own evidence he failed the character test in s 501(6)(d)(i);

(h)    the opinions were relevant considerations and the Tribunal was required to engage in an active intellectual process in considering them;

(i)    the Tribunal’s failure to do so was a jurisdictional error;

(j)    further, the Tribunal failed to complete its statutory task to make an evaluative judgment as to whether the decision-maker is satisfied that there is such “a risk”;

(k)    further and alternatively, the Tribunal’s finding that on his own evidence he failed the character test in s 501(6)(d)(i) was one at which no rational or logical decision maker could arrive on the same evidence and was illogical, irrational or unreasonable;

(l)    the Tribunal’s conclusion at [92] that he did not pass the character test was based in part on its conclusion at [91] that even by his own evidence of his “low” risk of reoffending, he fails the test;

(m)    had this error not occurred, this could have realistically resulted in a different decision, being that he satisfied the character test.

39    This ground turns on whether there was any error established in the Tribunal’s assessment of the expert evidence as asserted, remembering that Annexure A to Direction 90 at [6(2)], reproduced above, provides that:

The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

40    The substance of the argument advanced by Mr Nguyen must therefore be that the Tribunal was not entitled to conclude that the expert reports did not take the risk below the threshold of being a “minimal or remote chance” of reoffending, and as part of that, those expert reports were not properly considered.

41    The following identifies various references in the Tribunal’s reasons to the expert evidence:

(a)    at [27], the Tribunal listed the documents it admitted into evidence, giving each a marking, including two reports from Dr Watts and one report from Mr Cummins (marked A3, A4 and A5), together with the two letters of instructions to Dr Watts (A7);

(b)    at [45], in referring to Mr Nguyen being asked at the hearing to describe his rehabilitation program, the Tribunal made a footnote reference to there being no evidence that he undertook any counselling courses or psychology appointments during the time he spent on remand prior to sentencing or in the community prior to his appointments with Mr Cummins and Dr Watts in late 2020 and early 2021, indicating that those reports had been considered in some detail;

(c)    at [58] and [59], the Tribunal recorded by summary and by quote, Mr Nguyen’s evidence concerning what he had told Dr Watts and Mr Cummins, including giving incorrect information to Dr Watts and Mr Cummins;

(d)    at [86], the Tribunal summarised Mr Nguyen’s submissions on the character test, which included summarising the aspects of the expert reports relied upon, including Dr Watts asserting the conduct was a one-off incident, that he appeared to some degree to have grown up in the process of what had occurred, and that the reports demonstrated his remorse, without identifying which parts of those reports evidenced that;

(e)    at [88], the Tribunal recorded the Minister’s response to the Tribunal’s suggestion that a low risk of reoffending was sufficient to engage s 501(6)(d)(i), and that the evidence from Dr Watts would result in failing that test, with a footnote reference to Dr Watt’s view that the likelihood of reoffending was relatively low, being a correct characterisation of Dr Watt’s 21 November 2020 report at [23];

(f)    at [89(l)], the Tribunal recorded the Minister’s submission that the expert evidence did not assist Mr Nguyen because:

(i)    the version of the offending that he gave to Dr Watts was vastly different to the agreed statement of facts upon which he was sentenced, charactering his violent conduct as being no more than losing control and slapping his wife, with Dr Watts not appearing to have been given the sentencing remarks or the documents concerning other family violence in the relationship;

(ii)    Dr Watts was concerned about the “defensive profile” given by Mr Nguyen in his interview wherein a person “either may not have insight into or is defensive about their psychological functioning”;

(iii)    the records obtained by summons confirmed that, contrary to Dr Watt’s opinion, the offending was not one-off in terms of family violence;

(iv)    it was not possible to reconcile what Mr Nguyen told Mr Cummins about what a specialist, Dr Sang, had said about his treatment needs with the records about Dr Sang’s treatment recommendations, such that it should be inferred that Mr Nguyen knowingly misrepresented to Mr Cummins what had been recommended with a view to obtaining a favourable report from Mr Cummins;

(g)    at [98], the Tribunal described Mr Nguyen as remaining guarded and selective in his account of the circumstances of his offending, adding in footnote 211 that it did not accept his explanation for this and the facts were not in dispute (as reproduced earlier in these reasons);

(h)    at [100], the Tribunal recorded Mr Nguyen’s contentions as to the nature and seriousness of his conduct, including at (c) that Dr Watts was of the view that he was at the lowest end of the scale in terms of domestic violence and Mr Cummins stated that he is at the lower end of the spectrum in terms of being a risk of reoffending;

(i)    at [115], the Tribunal recorded Mr Nguyen’s submissions as to the likelihood of him engaging in further or other criminal conduct, including at (f) that both Dr Watts and Mr Cummins were aware of the nature of his offence and apprised sufficiently to make an assessment of his character and possibility of reoffending, such that the credibility of the reports was not impugned and should be given full weight, and with the Minister not requesting its own psychological evaluation of him;

(j)    at [118] and [119], and at footnote 250, the Tribunal recorded its concerns about the opinions of Dr Watts and Mr Cummins, including the conclusion that the incorrect and incomplete historical information provided to them at the time of briefing significantly limits the weight that could be applied to those reports, and also recorded the examples provided to Mr Nguyen’s legal representative at the Tribunal hearing.

42    In light of the above summary, I am unable to accept that the Tribunal did not give more than adequate consideration to the two expert reports, easily meeting the description of engaging in an active intellectual process. While consideration of those reports is not aptly characterised as a relevant consideration in the mandatory sense, that has in any event taken place. Nor is there any lack of logic or reasonableness in that assessment. To the contrary, the assessment was thorough and rational on its face. It follows that no jurisdictional error has been established in the Tribunal finding that Mr Nguyen failed the character test in s 501(6)(d)(i). This ground of review must therefore fail.

Ground 6 – failure to complete the statutory task by failing to evaluate language interpretation difficulties

43    This ground is directed to a different aspect of the expert evidence considered above in relation to ground 5, such that the analysis at [41] above is the starting point. The complaint made here is that the Tribunal erred in not accepting Mr Nguyen’s explanation of inconsistencies and omissions in the information given to the experts as flowing from language interpretation difficulties. The substance of the complaint is that the Tribunal did not give reasons for rejecting the explanation. The passage complained of is at footnote 211 of the Tribunal’s reasons:

The Tribunal does not accept the Applicant's explanation of these inconsistencies and omissions as being due to language interpretation difficulties or the differing documents provided to Dr Watts and Mr Cummins being due to the inexperience of the file handler (Applicant's written closing submissions at [15] and [16]).

44    Mr Nguyen submits that:

(a)    in failing to give reasons, the Tribunal failed to have regard to his evidence that he was not admitted to the domestic violence program to which he was referred as part of his Intensive Supervision Order primarily due to language barriers, referred to by the Tribunal at [63], and also evidence that he ceased attending group family violence sessions in part because he found it difficult to keep up because of his lack of proficiency in the English language, referred to by the Tribunal at [89(b)];

(b)    the Tribunal failed to have regard to Dr Watt’s evidence that while a translator was present during his interview with him, he only needed to rely on the translator on a couple of occasions and he “was not fully versant with the spoken language”; and further relies upon the absence of any reference in the reasons to whether or not he was assisted by an interpreter when being interviewed by Dr Watts or Mr Cummins and that an inference should be drawn that the lack of that reference means that this was not considered at all;

(c)    on a proper evaluation of the Tribunal’s reasons, it is evident that it did not consider his evidence about his previous language difficulties and that an interpreter was generally not used in the interview with Dr Watts in rejecting his submissions that inconsistencies were due to language issues;

(d)    the Tribunal failed to engage in an active intellectual process in giving consideration to his submissions on this topic;

(e)    the Tribunal’s conclusion at [106] that his offending was “very serious” was based in part on its conclusion at [98] that he remained “guarded and selective” in his account of the circumstances of his offending;

(f)    that had these errors not occurred, this could have realistically resulted in a different decision, being the exercise of the Tribunal’s discretion in his favour.

45    The actual submissions made to the Tribunal, identified in footnote 211 reproduced above at [43], were considerably less substantial than the argument made to this Court would suggest. The post-hearing submissions for Mr Nguyen dated 14 May 2021 record at the beginning (reinforcing the conclusion in relation to ground 5 that the Tribunal did consider the expert submissions thoroughly):

The Member has requested that the following issues be specifically addressed:

•    Differences between the reports prepared by Dr. Phil Watts dated 21 November 2020 and 23 March 2021;

•    Reasons why Dr. Phil Watts and Mr Jeffrey Cummins were given different documents;

and

•    Reasons as to why Dr. Phil Watts report dated 23 March 2021 did not state that the document was made in accordance with AAT guidelines.

46    On the topic of inconsistencies, those submissions state (as referenced in footnote 211):

15.    Thus, it is submitted that the import of both reports is consistent, although there may be some inconsistencies and omissions of narrative by the applicant. This may be explained due to language difficulties of interpretation.

16.    Dr. Watts and Mr Cummins were provided with different documents at the time of requesting their reports due to the inexperience of the file handler.

47    Given the paucity of the submission made and its tentative nature, it is not surprising that the Tribunal rejected the submission that the inconsistencies were attributable to unexplained language difficulties of interpretation, without any more detailed reasons being given. The Tribunal sufficiently addressed the submission that was made, and cannot be said to have failed to consider it.

48    It follows that this ground of review must fail.

Ground 7 – jurisdictional error by failing to consider a relevant consideration, being the applicant’s mental health issues as an impediment if he was removed

49    Direction 90 at [9(1)(b)] provides that, relevantly, the Tribunal in making a decision to refuse the grant of a visa under s 500(1) on character grounds must take into account, as a non-primary consideration, the extent of impediments that the visa applicant would face if removed from Australia. The content of that mandatory consideration is further described at [9.2(1)]:

Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen's age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

50    This ground is directed to the aspect of [9.2(1)(a)] which is referrable to Mr Nguyen’s mental health. He relies upon a medical certificate dated 19 June 2019 which records him being diagnosed with “mental stress”, and to him being referred to Mr David Sang for “counselling due to post-traumatic stress relating to an impulsive event happened 1 year ago with his wife”. He also relies upon the report from Mr Cummins in referring to mental health symptoms he reported, including symptoms of anxiety and depression, and to a submission made to the delegate in response to the notice of intention to consider cancellation of his visa. He submits that from all this, a representation clearly emerges that removal from Australia would have an adverse psychological impact upon him, caused mainly by separation from his daughter (noting that he has never had any contact with his daughter). He submits that the consideration of impediments dealt with by the Tribunal at [149]-[153] did not refer to any claim that removal would impose a psychological impediment upon him, such that this asserted claim was not dealt with. He submits that had this asserted claim been addressed, the conclusion reached would have been that any difficulties he would face in Vietnam would be temporary, such that this was a neutral factor which would have realistically resulted in a different conclusion.

51    The problem for Mr Nguyen with this ground of review is that, in the course of reasonably detailed submissions dated 20 April 2021 made on his behalf by his solicitors, prepared by the solicitor who represented him before the Tribunal, he made the following specific submissions on the topic of impediments (omitting footnotes):

Other considerations

51.    We are instructed that Miss Nguyen does not have any other family members in Australia except for our client and Trang. We are instructed that Trang had never been employed, neither on a full-time or part-time basis, and the only avenue of financial support for Miss Nguyen is through our client. We are instructed that Trang's parents are not able to provide supplementary financial support to Miss Nguyen as their business has gone downhill since the COVID-19 pandemic and they barely have sufficient money to support themselves.

52.    We are also instructed that our client’s parents are currently living in Vietnam and they are currently 68 and 69 years old. As such, they too, are unable to provide any form of support to Miss Nguyen. Therefore, if our client were to be deported, the actual harm to Miss Nguyen is that she would suffer from financial and emotional support as she would be living in Australia without a father.

53.    Given that our client has lived in Australia for five years, and the friends that our client has made, including Mr Rosario Caruso, together with the potential effect of his removal on the child, there will be considerable impediment to our client if he is to be removed from Australia. In particular, our client’s removal from Australia is likely to significantly limit our client's ability to interact with his daughter and his friends who are currently living in Australia, and to provide his daughter with financial and emotional support. As such, we request that significant weight be placed on this consideration.

52    The supposed clear representation now relied upon was not advanced at that time. Those that were made were considered. Mr Nguyen submitted to a delegate on 18 September 2020, in response to the notice of intention to consider cancellation of his visa, that in committing the offences he caused hardship to himself, including to his mental and psychological health, and sought medical help. Quite apart from this not featuring in the final submission as reproduced above, this submission is inconsistent with the available medical evidence which records that he had ceased taking medication within about six months of assaulting his wife, which the Tribunal was aware of: see [89(h)] of the Tribunal’s reasons.

53    The Minister submits, and I accept, that in circumstances in which Mr Nguyen:

(a)    was legally represented;

(b)    made express submissions as to the impediments he would face if returned to Vietnam;

(c)    made no claim that this would exacerbate or adversely affect his health;

(d)    led no evidence of any ongoing mental health issues or treatment; and

(e)    led evidence that his treatment for his mental health condition had ceased so he was not being actively treated or managed,

there was no error in the Tribunal not considering his mental health as an impediment if he was returned to Vietnam because there was no claim to that effect; and there is no need to consider the alternative argument that there is no realistic possibility that this could have made any difference to the ultimate result of visa refusal.

54    It follows that this ground of review must fail.

Conclusion

55    As all of the grounds of review that were pressed have failed, the amended originating application must be dismissed with costs.

Associate:

Dated: 20 September 2022