Nguyen v Minister for Immigration and Multicultural Affairs

B RELEVANT LAW

1. A withdrawal and disposal of a visa application occurs by operation and application of s 49 of the Migration Act, which is enlivened by a person's request to withdraw their visa application: Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396 (at [32]). Following a withdrawal of the visa application pursuant to s 49, s 47(2)(a) of the Migration Act operates to extinguish the Minister's requirement to consider the visa application.
2. This is evident from the text of the relevant provisions, which provide as follows: 47 Consideration of valid visa application (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or … (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. 49 Withdrawal of visa application (1) An applicant for a visa may, by written notice given to the Minister, withdraw the application. (2) An application that is withdrawn is taken to have been disposed of. (3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal. (4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
3. As can be seen, in accordance with s 49(2), an application that is withdrawn is (to use the awkward statutory phrase) "taken to be disposed of", and there is no discretion involved on the part of an officer of the Department in assessing whether there was in fact a withdrawal in order for the withdrawal to take effect. As can be seen above, s 47(2)(a) expressly provides that the requirement to consider an application for a visa continues until the application is withdrawn.
4. Adopting the words of Hely J in NACO v Minister for Immigration and Multicultural Affairs [2002] FCA 474 (at [18]), "the outcome arises by the application of the law to the facts, rather than an outcome which evolves from administrative decision".
5. We are dealing with a binary proposition: the withdrawal either occurred as a matter of objective fact or it did not. Ascertaining this objective fact is decisive to the issue of whether the application was "disposed of", which would have the effect of removing the obligation on the part of the Minister to consider the application.
6. It is thus necessary to turn to whether the applicant gave a written notice of withdrawal of his visa application to the Department under s 49(1) of the Migration Act.

C CHRONOLOGY

1. As with any other exercise in fact-finding, assessing the credit of any relevant witness matters, but what generally matters most is "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J); see also Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 (at 251 [16] per Lee J).
2. But at the start, it is worth remarking that this is a case where it is central to the applicant's claim that some of the contemporaneous materials were the product of what appears to be an elaborate fraud practised upon the applicant; and what is further notable is that there is no indication (pointed to in the evidence) as to the motivation of such nefarious conduct taking place, nor does the applicant suggest the identity of any person who may be responsible for practising such a fraud on the applicant.
3. In any event, what we know from the chronology is as follows: Date Event 15 June 2016 Application for a parent to migrate to Australia lodged. 28 June 2016 Department acknowledged application was received for a Contributory Parent (Migrant) (class CA) Contributory Parent (subclass 143) visa. 5 January 2021 Mr Nguyen's representative, Ms Pham from VietAust Lawyers, emailed the Department following up on the visa application and enclosed a Form 956 (acting as migration agent Form). Ms Pham also sought an update on the application made in 2016. 2 March 2022 Email from Department to Ms Pham (VietAust Lawyers) attaching letter to Mr Nguyen's mother, Thi Bich Lien Bui (with the solicitors authorised to receive correspondence on behalf of the visa applicants). 29 March 2022 Mr Nguyen's representative emailed the Department advising that Mr Nguyen's parents have divorced and that Mr Nguyen's father "does not want to go to Australia with his ex-wife so he wishes to withdraw his application". The email enclosed a Form 1446 signed by Mr Nguyen's father on 29 March 2022. 20 September 2022 At 11:21am - email from damnguyen30101995@gmail.com to parents@homeaffairs.gov.au attaching a withdrawal form with Mr Nguyen's signature and a copy of Mr Nguyen's passport (the Form 1446 was signed and dated 11 September 2022). At 11:35am - an enquiry was submitted through an online form withdrawing Mr Nguyen's visa application and attaching the same Form 1446 and a copy of Mr Nguyen's passport. 24 September 2022 Email from Department to Mr Nguyen's representative at vietaustlawyers@gmail.com acknowledging withdrawal of Mr Nguyen's visa application. Email from Department to Mr Nguyen at damnguyen3010@gmail.com acknowledging withdrawal of Mr Nguyen's visa application. At 2:15pm - Mr Nguyen's representative writes an email to the Department stating that Mr Nguyen never signed nor sent a withdrawal form. An apparent conversation between a member of the "decision support team" of the family visa branch of the Department and the solicitor for Mr Nguyen occurs. It appears that during this conversation the Department was asked to confirm that there had been "no mistake" made concerning the withdrawal of the application. At 2:36pm - Departmental officer Jacklyn replies to vietaustlawyers@gmail.com and asks her to provide additional information. At 2:48pm - Departmental officer emailed Mr Nguyen's representative stating that Mr Nguyen can request the visa to be withdrawn at any time as he is now 26 years old. A reference was made to the earlier telephone conversation, confirming that there had been no mistake on the part of the Department. At 3:40pm - Mr Nguyen's representative emails the Department stating that someone had hacked his email and obtained all his information. 25 September 2022 An enquiry is lodged through an online form regarding the Department's questions about additional information for the withdrawal. The enquiry contained the message "I was not dependent on my mother since many years ago, and I also had a partner. We pay for our living ourselves". 26 September 2022 Mr Nguyen's representative emails the Department and says "… someone must have hacked his email". 1 October 2022 Department emails vietauslawyers@gmail.com stating that "we are satisfied [Mr Nguyen] signed the form". The email bounced back as the email account "does not exist". 3 October 2022 The Department sends the same email above to Mr Nguyen's representative at vietaustlawyers@gmail.com. At 5:41am, 5:55am and 1:13pm - enquiries were submitted through the Departmental website, purportedly under the name "Thanh Dam Nguyen". 4 October 2022 At 5:41am, the enquiry sent to the Department stated "I have provided false information that could destroy a man's future. I'm terribly sorry because of my action. I would like to withdraw all what I have said before. Thanh Dam is a good guy and he really needs this opportunity to remake his life. Please proceed to approve his visa application. If you need any further information please do not hesitate to contact his lawyer from this authorized email 'vietaustlawyers@gmail.com'". At 5:55am, the enquiry sent to the Department stated "[a]ll information provided by vietaustlawyers@gmail.com so far is correct. I have defrauded Dam's signatures and used his passport which I hacked from his accounts to fake his withdrawal. I now have realized the significance of my action and sincerely hope that you would reopen his application to grant the visa. I believe himself and his family would have been devastated of this situation and feel really sorry for what happened". At 1:13pm, the enquiry sent to the Department stated "Dear Sir/Madam I refer to your email of 3 October 2022 and find it unfair for him because it is not him. Someone else must have hacked his email or his family's email with the intention to cause trouble for him and his family. They were so scared and had changed their passport and other contact details. The applicant had submitted his writing statement to confirm the issue. But it seems to me that the Department did not believe his writing statement or perhaps disregarded it because the Department was satisfied that the applicant signed the form. It is unfair for the applicant if the Department believed in what was submitted via the inquiry website, which could be easily done by anyone, over the handwritten statement, signed and fingerprinted by the true owner. For the sake of natural justice, I suggest that you should be organized for the applicant to attend Embassy in Vietnam to prove his identity or contact him directly". 21 October 2022 Enquiry submitted through the Departmental website, from Mr Nguyen's representative attaching confirmation of Mr Nguyen's signature and a further statement from him. The statement says that Mr Nguyen had received directly from the Department the email dated 24 September 2022 requesting he provide more information regarding the reasons for his withdrawal. It further states that "I learn that the Department has received information from parent enquiry which answered the Department's concern about the withdrawn. I affirm that it is not me. I have never sent any response". 23 December 2022 Email from Department to Mr Nguyen's representative, attaching letter from Department granting the primary visa applicant a Contributory Parent (subclass 143) visa.

D FURTHER CONTESTED EVIDENCE

1. The applicant read two affidavits on the application, and Mr Nguyen was cross-examined at length.
2. Mr Nguyen did not attend Court to give evidence in person and gave evidence remotely from Vietnam, with the benefit of an interpreter. In his evidence-in-chief given by way of affidavit, Mr Nguyen stated that he was not the one who applied and signed the withdrawal form (affidavit of Mr Nguyen dated 19 November 2024 (at [20]) (Nguyen Affidavit)) and that he believed there to be someone accessing his personal information via email to cause trouble for him and his family: Nguyen Affidavit (at [6]). Thus, as counsel for Mr Nguyen accepted, the only plausible alternative to the visa application being validly withdrawn by Mr Nguyen was the possibility that he was hacked by a third party, and that this "mischievous or nefarious third party" is responsible for submitting the visa application withdrawal. E CONSIDERATION
3. As noted above, Mr Nguyen accepted that as the moving party, he relevantly bore the onus in proving the fact that the visa had not been validly withdrawn.
4. This requires proof of a fact like any other fact. As Sir Owen Dixon emphasised, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found: Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361). His Honour also explained that a party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403)); and the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 (at 305).
5. This is not a case at the margins. After consideration of the whole of the evidence, I fall very short of a state of persuasion or reasonable satisfaction that the visa withdrawal was submitted by a person other than Mr Nguyen. Indeed, I am affirmatively satisfied that the visa withdrawal was made by Mr Nguyen. This is for a combination of reasons, two of which are of principal significance.
6. First, I had the opportunity of closely observing Mr Nguyen giving evidence. I am conscious of the fact that he was giving evidence through an interpreter and was also giving evidence remotely. I have taken these limitations into account. Having said that, and with respect to him, he did not seem to me to be an impressive witness, and in some respects was somewhat guarded in his answers. His lack of any rational explanation as to why anyone would have acted in this way was difficult to reconcile with the objective facts, and without overstating the importance of demeanour, I am not satisfied that he was being completely candid in giving evidence about the withdrawal application.
7. Secondly, and perhaps more importantly, the account given by Mr Nguyen is inherently improbable. As was revealed during submissions, in order for Mr Nguyen's evidence to be accepted, one would need to accept that the third party had access to:
8. Mr Nguyen's passport;
9. Mr Nguyen's mother's passport;
10. Details of the client identification number held by the Department;
11. Details of the file number held by the Department;
12. An image of Mr Nguyen's signature which the third party could have manipulated (given it was accepted by Mr Nguyen in cross-examination that the signature on the withdrawal document represented his signature);
13. Information concerning Mr Nguyen's brother's involvement in making the visa application in 2016;
14. The fact that Mr Nguyen's mother involved an agent to organise documentation for the visa application;
15. Details of the email address of Mr Nguyen sufficient to manipulate an account to make it appear like an account very similar to that which we know was an account operated by Mr Nguyen;
16. The details as to Mr Nguyen's solicitor's email account, which again was changed in order to make it appear to be like the solicitor's email account; and
17. Information which would allow the third party to gain access to an email communicated to Mr Nguyen by Vietaust Lawyers, in order to prepare a response to the Department's request for additional and more specific information regarding the visa withdrawal.
18. This seems to me a course of events so unlikely that I am affirmatively satisfied that the withdrawal application was made by Mr Nguyen. But even if I was in error in reaching this state of satisfaction, I do not find that Mr Nguyen has discharged his onus in proving, on the balance of probabilities, that the visa application was not made by him.
19. Given that I am satisfied that the applicant gave a written notice of withdrawal of his visa application, the requirements of s 49(1) are met, and the visa application was subsequently disposed of pursuant to s 49(2). From the moment that the application was withdrawn, the Minister was no longer required to consider the application for a visa: see s 47(2)(a) of the Migration Act.
20. A host of additional submissions were raised by the parties, including a somewhat arcane discussion as to whether the Court's "jurisdiction" under s 39B of the Judiciary Act 1903 (Cth) arises because of the possibility that the notice of withdrawal is a "subjective" jurisdictional fact, preliminary to the decision-maker determining whether to grant or refuse a visa. Further, given the history of this matter, an argument concerning issue estoppel arose. It is unnecessary for these issues to be canvassed. I am amply satisfied that the proper construction of the Migration Act and the interplay between ss 47 and 49 is as I have set out, and the foundational issue for determination is whether or not, as a matter of objective fact, the visa application was withdrawn.

F CONCLUSION AND ORDERS

1. Everything that could possibly be said on behalf of Mr Nguyen was said by Mr Jones, and I am grateful for the competence and candour with which this application was dealt with by counsel for both parties.
2. In the circumstances, the appropriate order to be made is that the application be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.