Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 2177

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 20 February 2024, the Tribunal affirmed a decision not to grant the applicant Trung Tan Nguyen a partner visa. On 26 March 2024, the applicant asked this Court to review that decision. The application was within the time limit because it was received but not filed on the 35th day upon which the applicant could make an application to the Court. Therefore, it is not one that needed the grant of an extension of time and could be heard on the merits.
2. The matter came before Registrar Dowling on 19 May 2025 in chambers, and the Registrar made formal orders as to the filing of material. In those orders, the Registrar asked the applicant to file and serve written submissions, any amended application with proper particulars of the grounds, and any additional evidence upon which the applicant sought to rely, at least 28 days before the hearing.
3. On 6 August 2025, the matter was before Registrar Cummings, where the applicant appeared by telephone with the assistance of an interpreter, and the Court also made some administrative orders, but said that the matter would be listed for hearing, no earlier than 17 October 2025. The Registrar ordered that the applicant file and serve, on or before 19 September 2025, any amended application with proper particulars, any written submissions and any additional evidence.
4. On 8 October 2025, Registrar Cummings made an order that made it clear that the application that was to be heard was not an extension of time, but rather it was a substantive hearing on the merits. That was set down before me for today, 10 am Brisbane time, on 23 October 2025.
5. Yesterday, 22 October 2025, the applicant attempted to file an affidavit and. an application in a proceeding, seeking an adjournment. The Registrar approached my Chambers to see whether the Court would accept that material for filing.
6. My Associate told the registry that the Court would accept the application, but that the applicant needed to make himself available to the Court, to argue the application. The registry sent an email to the applicant informing him, that he still needed to attend to argue the application.
7. The applicant has not attended. The Court has, on two occasions, tried to telephone him as his attendance was only needed by telephone. There was no physical appearance needed, and that was made clear in previous correspondence.
8. The Minister has asked the Court to proceed with the matter, and I have taken the following matters into consideration.
9. Firstly, that there had been two orders made by Registrars - firstly by Registrar Downing and then secondly by Registrar Cummings, telling the applicant to file an amended application or written submissions. The applicant has done none of those things, notwithstanding he has had quite some time to do so. The originating application was filed in March of 2024, and the orders, as I have said, were made by the respective registrars earlier this year.
10. There really has been no engagement with the Court, by the applicant, until the eve of the application. Now this is also quite telling that he had the medical certificate on Friday the 17 October 2025 and yet waited until the afternoon of Wednesday 22 October 2025, less than 24 hours before the hearing was going to occur to ask the Court to adjourn the matter. There is no explanation as to why he has not complied with the orders of the Registrars.
11. Secondly, the affidavit upon which he relies, and which annexes the medical certificate, is a pro forma certificate of sickness where the GP has filled in the blank spots. The GP says that in his opinion the applicant has severe anxiety and post-traumatic stress disorder and has an upper respiratory tract infection. The certificate says that he is unfit for work.
12. The certificate does not say he is unfit to participate in a hearing via telephone. The applicant was able to communicate properly and comply with directions given to him by the registry yesterday to enable the material, which he wished to have filed, actually filed. He has been able to organise an affidavit and have a witness, witness his signature, and so on, between Friday, 17 October 2025 and yesterday, 22 October 2025 - though when one looks at the affidavit, it seems to have been witnessed on 17 October 2025.
13. So, that would not give the Court any reason to suspect that his mental faculties have been, in any way, compromised by the diagnosis given by his GP. In all of those circumstances, I am not inclined to do anything other than proceed with the matter today.
14. I am going to proceed pursuant to r 22.04(1)(a)(iv) of the Migration Regulations 1994 (Cth) ("the Regulations") and proceed with the hearing generally.
15. The background to the matter is that the applicant has made an application for a partner visa. The application was made on 12 April 2018. One of the aspects that the applicant had to satisfy was that of Public Interest Criterion ("PIC") 4020. That criterion requires that there must be no evidence, before the Minister, that the applicant had caused to be given to the Minister a bogus document or information that was false and misleading in a material particular in relation to the application for the visa or for a visa that the applicant held in the 12 months before the application was made.
16. The applicant made the application for the partner visa, on 12 April 2018. The departmental records show that, at 12 April 2017, the applicant was in Australia under the auspices of a visitor visa which had been granted to him in the previous year.
17. To satisfy Public Interest Criteria 4020, the applicant had to show that he had not given any false information to the department, not just in relation to his application for the partner visa, but in relation to his application for the visitor visa.
18. Now, the visitor visa was applied for by the applicant on 24 November 2016. In that visitor visa, the applicant stated that - as regard to his marital status - that he was married to a woman by the name of Thi Hong Loan Duong and he appended a marriage certificate to the form to prove such a relationship.
19. However, it turned out that there was a decree of divorce that was dated 18 October 2016, which is 37 days before the application for the visitor visa on 24 November 2016. Therefore, what the applicant wrote in the application for the visitor visa was false information. The decree of divorce was submitted by the applicant to the department as part of his application for the partner visa, because he had to prove that he was divorced to show that he had part of the requisites for the partner visa - that is, that he was in a relationship which was between he and his new partner, the sponsor, to the exclusion of all others - and therefore, it was necessary for him to provide that certificate of divorce.
20. So whilst the information was incorrect and false, the Tribunal still had to be satisfied that the applicant had, and had knowingly provided that false information, and that there was an element of fraud or deceit with regard to that information being provided. That aspect of the fraud or deception is an aspect that was looked at by the Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42.
21. The applicant said to the Tribunal that he did not knowingly provide false information, and certainly there was no element of fraud or deceit.
22. The Tribunal went through an extensive forensic analysis of what it was that the applicant was saying. The applicant took no issue with the fact that he was actually divorced on 18 October 2016, but he says that he did not know about this until 12 July 2017. He told the Tribunal that he had left the country at the time of October 2016 and did not know anything of the Court proceedings, that this was an application for divorce that had been filed by his ex-wife and that she was the one who was running the matter.
23. He said that he knew that she had gone to the Court, and he went to the Court as well and that the Court told them that they had to mediate and attempt reconciliation. He said that they did, in fact, reconcile and they lived with his parents for some time, still as man and wife sharing a marital bed, and that he then decided that he wanted to go to Australia.
24. He said that his ex-wife was not happy about the situation, but that he left anyway. He said that he continually spoke to his parents and to his daughter but only spoke to his ex-wife every four weeks or so, and only about the care of their daughter. He said that, having been away from the home for quite some time, he had met someone in Australia, and he contacted his ex-wife to tell her that he had fallen in love and that they needed to make the divorce final. It was then that he sent his relative to the Court and they gave him the certificate, which he then discovered meant that he had been divorced for some nine months without his knowledge.
25. The Tribunal, in their examination, did not accept that this was the case. Firstly, the applicant claimed that he wasn't in Vietnam at the time that the divorce decree was made. The travel records show that he definitely was in Vietnam at the time. The divorce decree itself spoke of the persons for whom this decree was to be given were the litigants, which included himself. It was addressed to him at his address.
26. But more importantly, the certificate shows that the applicant was the plaintiff in the application for divorce and his ex-wife was the respondent rather than the other way around.
27. There was a letter from lawyers in Vietnam that explained how it was that the Vietnamese system recognised divorces. This was inconsistent with the applicant's version that the Court asked them to mediate and try and reconcile.
28. The divorce decree shows that they had already come to an agreement with regard to property and to the care of the child, and that the Court, in effect, was giving its imprimatur to that arrangement that had been made.
29. The law in Vietnam was that the material would be sent. As the issuing of the certificate happens once and once only, there is nothing to show that this document was not sent.
30. The Tribunal came to the conclusion that it was satisfied that the applicant knew, at the time of lodging his application on 24 November 2016, that he had been divorced for 37 days.
31. The Tribunal then had to look at whether this false statement was false in a material particular. What it looked at was the fact that one of the guiding factors, to influence a decision as to whether a visitor visa will be issued or not, is to what ties a person has in their own country that would be such that they would return home to their country at, or before, the expiration of the visa.
32. If a person is married and has been married for quite a number of years and has a child, and both the wife and the child are in Vietnam, one would think that, ordinarily, such a fact would be s factor that would tend to show that the person has ties in their country and would return home because of those ties. However, if it were that the person was recently divorced and did not have that marital tie, then such a circumstance could be a factor in the decision of the Department as to whether to grant the visa, because the ties to the country would not be as strong.
33. Therefore, the Tribunal was satisfied that the false information related to a material particular which needed to be considered by the delegate in deciding whether or not to grant the visitor visa.
34. This meant that the applicant had not satisfied the requirements of Public Interest Criteria 4020 because he had, in his application for a visa that was in place 12 months before his application for the present visa, given the department false and misleading information.
35. However, that is not the end of the matter. The Tribunal had to look at whether there were compelling and compassionate circumstances that would be such as to allow the Minister - or in this case, the AAT - to waive the criteria of PIC 4020.
36. The applicant claimed that he had started the new relationship with his sponsor and he had been subjected to family violence at her hands. He said that he was the victim of criminal acts of damage to property, verbal abuse, physical assault including having objects thrown at him which caused injuries to his head, his finger and his foot. He said that because he had been subjected to family violence and he has suffered a lot because of that abuse, he asked not to be subject to barriers to receiving protection here in Australia.
37. The Tribunal thoroughly looked at this aspect. At paragraph 85, the Tribunal said that the applicant had not been denied a pathway to protection or relief and stability, as claimed in his submissions. The AAT said "no barrier to achieving this has been put in his way by invoking PIC 4020".
38. The Tribunal found that the applicant had already taken steps to protect himself in the face of what he claims to be family violence committed by the sponsor, included by leaving the sponsor, by moving interstate and by seeking professional help to deal with symptoms. Additionally, there appeared to be nothing stopping the applicant from going to the police with his claims of family violence and asking for protection through a family violence intervention order or domestic violence order or seeking prosecution if he felt he needed those protections.
39. Those were, and they continue to be, options open to him in circumstances where he had alleged family violence and required protection from the sponsor. The Tribunal said that these should properly be regarded as examples of where Australia has the ability to protect someone who has alleged family violence and where the applicant can find relief and stability away from his or her sponsor. In short, these and other measures are pathways to protection and relief and stability that do not involve the specific exercise of invoking the family violence provisions in Division 1.5 of the Regulations.
40. At paragraph 86, secondly, the Tribunal found that PIC 4020 does not operate as a punishment in the first place, as claimed by the applicant's representative. Rather, PIC 4020 reflected the public policy imperative to promote the interest in ensuring that an applicant does not give bogus documents or information that he or she knows to be false or misleading, or of which he or she is indifferent to the truthfulness while discouraging dishonesty. The seriousness of the imperative is underscored by the two consequences for breach; the first being that an applicant is denied the visa for which he or she has applied, and the second being that an applicant and his or her family members who are aged 18 or over are unable to apply for a further visa within a certain period after applying for the visa that has been refused.
41. To the extent that PIC 4020 might penalise an applicant by denying him or her a pathway to protection or relief and stability in the form of the grant of a visa, the Tribunal found that this was justified in light of the public policy imperative stated above, and the same is true here.
42. While the applicant's interests in having his family violence claims heard are obviously affected if he were unable to satisfy PIC 4020, his specific interests are unable to be considered under PIC 4020(4)(a) or (b), and that he had failed to show how Australia's interests are affected by the operation of PIC 4020.
43. At paragraph 89, the Tribunal said that the Tribunal had considered the applicant's testimony but "finds that a desire to live and work in Australia is not a compelling circumstance affecting the interests of Australia". It also "finds that declaring one's income, paying taxes and abiding by the law are all basic requirements for people who live in Australia and that, without more, are not compelling circumstances affecting the interests of Australia".
44. The Tribunal could not find that there were any circumstances that justified the waiver of PIC 4020 and came to the conclusion that those requirements should not be waived. In doing so, they affirmed the decision not to grant the applicant the partner visa.
45. The applicant had three grounds of application:
46. First, that the Tribunal did not consider relevant information about his case.
47. This ground is very vague and does not identify what information was not considered. But in any event, it seems very difficult to make out because the Tribunal was meticulous in looking at all the information that it had before them. This was a decision that spanned some 23 pages - albeit some of those were annexures - but it was a very thorough examination of everything that was before it. The applicant has not shown, in the time that he has had to do so - that is, from March 2024 to October 2025 - what relevant information was not considered.
48. This ground fails.
49. Ground 2 is that the Tribunal considered irrelevant information in assessing his claims.
50. Irrelevant information means that they considered material that the Tribunal was prohibited from considering. This has not been particularised in any way, and, on the face of it, there does not seem to be any material of such a kind that has been considered by the Tribunal. This ground fails
51. The third ground is that the Tribunal did not afford the applicant procedural fairness. The Tribunal has complied in all respects with s 357A, which is the exhaustive list of the considerations of natural justice and procedural fairness. There has not been anything shown to the Court, that would, in any way, suggest that the Tribunal has derogated from their duty under what was the old s. 357A of the Migration Act 1958 (Cth). This ground fails.
52. Those three grounds lack any particularity, are vague, and prima facie are just plain wrong. I do not find that any of those grounds illustrates a jurisdictional error.
53. The applicant is self-represented, and I have looked thoroughly through the Court books, that were quite extensive, and the decision of the Tribunal. I cannot see that any jurisdictional error has been illustrated, nor has any process of reasoning of the Tribunal been affected by jurisdictional error.
54. Having come to those conclusions, the only option for the Court is to dismiss the application, which I do, with costs fixed in the sum of $5,900.00.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.