Date of Judgment: 17 September 2025 - [2025] HCASJ 33

HIGH COURT OF AUSTRALIA
STEWARD J
QUANG SAU LE PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT
[2025] HCASJ 33
Date of Judgment: 17 September 2025
S71 of 2025
ORDERS
1.Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period of time within which the plaintiff's application may be made is extended to 10 June 2025.
2.Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the periods of time within which to file the plaintiff's application, fixed by rr 25.02.1 and 25.02.2(b), are enlarged to 10 June 2025.
3.The plaintiff's application for a constitutional or other writ filed on 10 June 2025 is dismissed.
4.The plaintiff is to pay the defendant's costs of and incidental to the application.

Representation
The plaintiff is represented by Wickham Lawyers
The defendant is represented by Sparke Helmore Lawyers

STEWARD J. By an application for a constitutional or other writ, the plaintiff (Mr Quang Sau Le) seeks judicial review of a decision of a delegate of the defendant (the Minister for Immigration and Citizenship). The plaintiff also seeks an extension of time within which to make that application.
For the following reasons, the extension of time is granted but the application is dismissed.
Background
The plaintiff is a Vietnamese citizen, who seeks a Business Talent (Subclass 132) (Permanent) visa in the Significant Business History stream (the "Visa"), being one of several Australian business skills visas.[1] The Explanatory Statement to the regulations which created that visa stream explains that it "applies to applicants who have had a successful business career and are proposing to establish or participate in a business that the sponsoring State or Territory has determined is of exceptional economic benefit to the State or Territory".[2] The relevant history in respect of the plaintiff's efforts to obtain the Visa may be broadly summarised as follows.
[1]This subclass of Australian visa was permanently closed to new applicants in July 2024. However, the plaintiff's application was nevertheless processed on the basis that it was lodged prior to that date (see below).
[2]Explanatory Statement, Migration Amendment Regulation 2012 (No 2) (Cth) at 48.
On 24 March 2020, the plaintiff lodged an expression of interest for a Visa. Later that year, on 16 September 2020, the plaintiff lodged a nomination application with the Government of South Australia (it was a requirement for the grant of the Visa that the plaintiff be nominated by a State or Territory government agency).[3]
[3]Migration Regulations 1994 (Cth), Sch 2, cl 132.212.
On 17 September 2020, the plaintiff received confirmation from the Government of South Australia that his nomination application had been approved, and that the plaintiff would shortly receive an invitation from the Department of Home Affairs (the "Department") to apply for the Visa (it was a requirement for the grant of the Visa that the plaintiff be invited in writing by the Minister to apply for the Visa).[4] Later that same day, the plaintiff received that invitation from the Department, which specified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Date of Judgment: 17 September 2025 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] HCASJ 33
Decision Date: 17 September 2025

CaseChat Overview and Summary

In the matter of [Plaintiff] v Minister for Immigration, Citizenship and Migrant Services [2025] FCA 1239, the plaintiff, a Vietnamese citizen, sought judicial review of a decision by the delegate of the Minister for Immigration, Citizenship and Migrant Services (the "Minister") to refuse his application for a Business Talent (Subclass 132) (Permanent) visa in the Significant Business History stream. The plaintiff's application was premised on his intention to establish an agricultural export business in Australia, specifically focusing on exporting South Australian produce to Vietnam and other Southeast Asian countries. The primary legal issue before the court was whether the delegate's decision to refuse the plaintiff's visa application was infected by jurisdictional error, specifically whether the delegate misconstrued the criteria set out in clause 132.227 of the Migration Regulations 1994 (Cth).

The court examined whether the delegate misconstrued the statutory criteria for the grant of the visa, as alleged by the plaintiff. The plaintiff argued that the delegate had incorrectly assessed his intentions against the expected outcomes of the Business Skills program, rather than strictly adhering to the statutory criteria. The court held that the delegate did not misconstrue the statutory criteria, as the reasons provided indicated that the delegate properly considered the statutory requirements. Even if there had been an error, the court found it to be non-material. Therefore, the application for judicial review was dismissed, though an extension of time was granted due to the plaintiff's prompt action in filing the application after being provided with relevant case law.

The court's decision underscores the importance of correctly interpreting and applying statutory criteria in visa applications, and reaffirms that a misconstruction of such criteria, if it occurs, must be both identified and material to the decision for it to be considered jurisdictional error. The outcome of this case highlights the rigorous standards required for judicial review in immigration matters, particularly concerning the interpretation of legislative criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the extension of time is granted but the application is dismissed.Background The plaintiff is a Vietnamese citizen, who seeks a Business Talent (Subclass 132) (Permanent) visa in the Significant Business History stream (the "Visa"), being one of several Australian business skills visas.[1] The Explanatory Statement to the regulations which created that visa stream explains that it "applies to applicants who have had a successful business career and are proposing to establish or participate in a business that the sponsoring State or Territory has determined is of exceptional economic benefit to the State or Territory".[2] The relevant history in respect of the plaintiff's efforts to obtain the Visa may be broadly summarised as follows.[1]This subclass of Australian visa was permanently closed to new applicants in July 2024. However, the plaintiff's application was nevertheless processed on the basis that it was lodged prior to that date (see below). [2]Explanatory Statement, Migration Amendment Regulation 2012 (No 2) (Cth) at 48. On 24 March 2020, the plaintiff lodged an expression of interest for a Visa. Later that year, on 16 September 2020, the plaintiff lodged a nomination application with the Government of South Australia (it was a requirement for the grant of the Visa that the plaintiff be nominated by a State or Territory government agency).[3][3]Migration Regulations 1994 (Cth), Sch 2, cl 132.212. On 17 September 2020, the plaintiff received confirmation from the Government of South Australia that his nomination application had been approved, and that the plaintiff would shortly receive an invitation from the Department of Home Affairs (the "Department") to apply for the Visa (it was a requirement for the grant of the Visa that the plaintiff be invited in writing by the Minister to apply for the Visa).[4] Later that same day, the plaintiff received that invitation from the Department, which specified that his application for the Visa must be lodged on or before 16 November 2020. [4]Migration Regulations 1994 (Cth), Sch 2, 132.221. On 14 November 2020, the plaintiff lodged an application for the Visa (the "Visa Application"). The Visa Application included the plaintiff's three children as secondary applicants. Later, on 28 October 2022, the plaintiff notified the Department of Home Affairs of his marriage to his new wife (in February 2021) and the birth of their new child (on 24 June 2021). The plaintiff's notification confirmed that neither the plaintiff's new wife nor new child intended to migrate to Australia with the plaintiff and his other three children. On 13 November 2024, the plaintiff lodged a "Statement of Business Intention for South Australia" (which was dated 15 November 2020) in support of his Visa Application (the "Business Plan"). That Business Plan outlined the agricultural export business – Sunshine SA Pty Ltd ("Sunshine") – which he asserted he intended to carry on in Australia in the event the Visa was granted. In short, the plaintiff therein asserted that "[t]he focus of [Sunshine] will be on the export of South Australia meats, grains, honey and natural products such as nutrition foods from South Australia to Vietnam (and other Southeast Asian countries)" and that "[Sunshine] will be developed to meet the growing demand for Australian agriproducts by the Asian demographic".

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STEWARD J

Shortly thereafter, on 10 June 2025, the applicant filed the present application in this Court seeking judicial review of the Delegate's Decision (the "Present Application"). The Minister accepts that this Court has jurisdiction to determine the Present Application and that it should not be remitted to another court.The Delegate's Decision The Delegate's Decision (to refuse the Plaintiff's Visa Application) was expressed in the "Decision Record" to be made on the basis of a finding that "the criteria for the grant of a [Visa] are not satisfied". Specifically, the delegate indicated that in this case, he was not satisfied that cl 132.227 of Sch 2 of the Migration Regulations 1994 (Cth) were satisfied.[7] [7]Both the plaintiff and Minister accept that cl 132.227 prescribed criteria which needed to be met for the Visa to be granted. See Migration Act 1958 (Cth), s 31(3); Migration Regulations 1994 (Cth), reg 2.03. Clause 132.227 relevantly prescribed the following criteria for the grant of the Visa:"(1)The applicant genuinely has a realistic commitment to:(a)establish a qualifying business[8] in Australia; or(b)participate in an existing qualifying business in Australia.(2)The applicant genuinely has a realistic commitment to:(a)maintain a substantial ownership interest in the qualifying business mentioned in subclause (1); and(b)maintain a direct and continuous involvement in the management of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy."[8]A "qualifying business" is defined by reg 1.03 of the Migration Regulations 1994 (Cth) to mean "an enterprise that: (a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and (b) is not operated primarily or substantially for the purpose of speculative or passive investment". In that respect, the delegate noted that the applicant was currently "a 100 percent owner of ... Quang Sau One Member Company Limited", being a "Vietnam-based timber trading business, which focusses mainly on the processing and trading of timber /or wood products since the business was established in February 2017". He went on to observe that the only supporting documents relevant to cl 132.227 which the plaintiff submitted were: (i) online "yes" responses to the business talent declarations contained in his Visa Application; and (ii) the Business Plan, which the delegate acknowledged was "approved by the Government of South Australia" but which he described as: "[A] short business plan with little detail ... [which] stated the applicant's intentions to inject approximately AUD 1 million into a new Adelaide-based agricultural produce export business dealing in meats, grains, honey, and natural products. The business is forecast to potentially achieve a turnover of at least AUD 800,000 within the first 2 years and then generate annual turnover of AUD 1 million from the 5th year onward."

Ratio Decidendi

Legal Principle Established

Established by: STEWARD J

The Minister does not oppose the grant of the extension of time. Accordingly, and also having regard to the fact that (as explained above) the plaintiff acted promptly to file the Present Application after the unreported decisions of this Court in Gajjar and Nguyen were provided to him, I am satisfied that the extension of time is in the interests of the administration of justice. I grant the extension of time.Consideration – jurisdictional error The plaintiff contends that the Delegate's Decision was infected by jurisdictional error. The error in question is said to be a misconstruction of the governing criteria to the Visa prescribed by cl 132.227 (the plaintiff does not otherwise take issue with any other aspect of the Delegate's Decision). In particular, the plaintiff takes issue with the part of the delegate's reasons in which he concluded that he was "not satisfied the applicant's intentions to establish an agricultural export business in Australia are genuine, realistic or commensurate to the expected outcomes of the Business Skills program, or will offer any significant benefit to the Australian economy".[9] The plaintiff submits that this passage, coupled with a reading of the delegate's reasons "as a whole", illustrates that "what the delegate has done is to assess whether the applicant had a genuine and realistic intention of establishing a business that met the expected outcomes of the Business Skills program, or will offer any significant benefit to the Australian economy",[10] which is "not the question that [cl 132.277] required to be met". In doing so, the plaintiff submits that "[t]he delegate has substituted the policy for the statutory test in a manner that is more restrictive than the statutory test". This is said to constitute jurisdictional error given that, as French, Sackville and Hely JJ said in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs:[11] "Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask. In such a case ... the Minister’s decision would be a nullity. The Minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect."[9]Emphasis added to the Delegate's Decision.[10]Emphasis in the plaintiff's written submissions.[11](2003) 132 FCR 93 at 106 [43]. I am not satisfied that the delegate fell into such jurisdictional error. Two propositions (addressed in further detail below) compel that conclusion. First, on a fair reading of the delegate's reasons as a whole, he did not err in the manner which the plaintiff contends. Second, in any event, even if he did so err, that error was not material.(1) The delegate did not misconstrue the criteria in cl 132.227