FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAN v MINISTER FOR IMMIGRATION | [2019] FCCA 3558 |
| Catchwords: MIGRATION – Business Skills (Provisional) (subclass 188) visa – where applicant deposits funds in Australian bank accounts – whether funds constitute a complying significant investment within the meaning of the Migration Regulations 1994 – whether funds used to make investment are unencumbered and lawfully acquired – whether applicant provided evidence to substantiate claims – whether documentation supplied reasonably established trail of funds from source of nominated asset sales to transfer to Australia and deposit to bank accounts – applicable principles – impact of executive policy upon administrative decision making – whether reference to policy indicated decision-maker fettered in consideration of material – whether failure to consider material that was placed before the delegate – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 338, 476, 498 |
| Applicant: | XIANGJUN HAN |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | MLG 2221 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 December 2019 |
| Date of Last Submission: | 3 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder |
| Solicitors for the Applicant: | Erskine Rodan |
| Counsel for the Respondent: | Mr N. Wood |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 26 March 2019 be dismissed.
The applicant pay the costs of the respondent fixed at $7,464.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2221 of 2017
| XIANGJUN HAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 26 March 2019, the applicant seeks judicial review of a decision of a delegate of the respondent (Minister) refusing to grant him a Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa in the Significant Investor stream…
Keep reading for free
Create a free CaseChat account to read HAN v Minister for Immigration 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2019] FCCA 3558
- Decision Date
CaseChat Overview and Summary
The applicant, HAN, sought judicial review of a decision by the Minister for Immigration concerning a Business Skills (Provisional) (subclass 188) visa. The dispute centred on whether funds deposited by the applicant into Australian bank accounts constituted a complying significant investment, specifically whether these funds were unencumbered and lawfully acquired. The matter came before Judge A Kelly of the Federal Court of Australia.
The court was required to determine whether the applicant had provided sufficient evidence to substantiate their claims regarding the source of their funds. This involved assessing whether the documentation supplied reasonably established a clear trail of funds from the source of nominated asset sales to their transfer to Australia and subsequent deposit. The court also considered the impact of executive policy on administrative decision-making, and whether the decision-maker had been improperly fettered by such policy or had failed to consider material placed before them.
In reaching its decision, the court examined the requirements outlined in the relevant Migration Regulations and the associated policy guidance. The Guide stipulated that applicants were expected to provide a signed declaration detailing the accumulation of funds for their asset portfolio and capital investment, supported by substantiating evidence. For funds sourced from business ownership disposal, specific documentation, including official records of disposal and bank records of transfer, was required, along with evidence of tax paid on capital gains where applicable. The Guide also emphasised the need for documentary evidence to demonstrate that funds used for the investment originated from lawfully acquired and unencumbered assets, with a reasonably established trail of funds. The court referenced the principles established in *G v Minister for Immigration and Border Protection*, distinguishing between executive policies that invite consideration of circumstances and those that are so prescriptive as to compel adherence as if they were statutory provisions. The court found that the applicant had not provided sufficient evidence to reasonably establish the trail of funds from the source of nominated asset sales to their deposit in Australian bank accounts.
The application was dismissed.
The court was required to determine whether the applicant had provided sufficient evidence to substantiate their claims regarding the source of their funds. This involved assessing whether the documentation supplied reasonably established a clear trail of funds from the source of nominated asset sales to their transfer to Australia and subsequent deposit. The court also considered the impact of executive policy on administrative decision-making, and whether the decision-maker had been improperly fettered by such policy or had failed to consider material placed before them.
In reaching its decision, the court examined the requirements outlined in the relevant Migration Regulations and the associated policy guidance. The Guide stipulated that applicants were expected to provide a signed declaration detailing the accumulation of funds for their asset portfolio and capital investment, supported by substantiating evidence. For funds sourced from business ownership disposal, specific documentation, including official records of disposal and bank records of transfer, was required, along with evidence of tax paid on capital gains where applicable. The Guide also emphasised the need for documentary evidence to demonstrate that funds used for the investment originated from lawfully acquired and unencumbered assets, with a reasonably established trail of funds. The court referenced the principles established in *G v Minister for Immigration and Border Protection*, distinguishing between executive policies that invite consideration of circumstances and those that are so prescriptive as to compel adherence as if they were statutory provisions. The court found that the applicant had not provided sufficient evidence to reasonably establish the trail of funds from the source of nominated asset sales to their deposit in Australian bank accounts.
The application was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
As concerned the Source of Funds for Assets Nominated to Make a CI, the Guide addressed seven topics together with the issue, Fund Transfer,[32] and stated that applicants were expected “to submit a signed declaration detailing how they generated/accumulated funds for their asset portfolio and capital investment, with evidence to substantiate their claims.”[33] The first topic addressed Income from business. As concerned funds that had been sourced from the proceeds of business ownership, the Guide stated:[34]Where the applicant’s funds are sourced from the proceeds of business ownership disposal, applicants should submit official records retrieved from the AIC indicating the disposal, bank records showing the transfer of the proceeds received and evidence of tax paid on the capital gain on transfer of their shareholding where the appreciation in the value of their shareholding as compared with their original investments is exceptionally large. [32] Guide, cll 170-188.[33] Guide, cl 170.[34] Guide, cl 173 (emphasis added). As concerned the topic, Fund Transfer, the Guide stated:[35]Applicants will need to submit documentary evidence to demonstrate that the funds ultimately available to make the CI are originated from the assets nominated to make the CI which have been assessed as lawfully acquired and unencumbered. The trail of funds must be reasonably established with supporting evidence accounting for each step of the way. Applicants should therefore keep all records involved in the transfer/exchange of funds. For the sake of clarity, it is advisable that the number of transactions be kept to a minimal (sic).The Guide referred to an application checklist (that was also provided).[36][35] Guide, cl 186 (emphasis added).[36] Guide, cl 199. The use or application of an executive policy which does not have legislative force may be a factor in administrative decision-making. The nature of executive policy as expressed in a document such as the Guide was considered in detail in G v Minister for Immigration and Border Protection,[37] where one ground of review was that a Tribunal had inflexibly applied an executive policy, thereby confining itself to consideration of whether the criteria in the policy – as distinct from the criterion prescribed by the Act or Regulations – were satisfied.[38] [37] [2018] FCA 1229, (Mortimer J).[38] [2018] FCA 1229, [34], [127]. Mortimer J considered, in detail,[39] the role of executive policy in the discharge of the statutory function of administrative decision-making. Her Honour noted that, notwithstanding the document mirrored (i.e. projected the appearance of) a legislative instrument, its contents were, and remained, an expression of executive policy. [40] Her Honour considered the role of executive policy to be important to the evaluation of whether an administrative decision was tainted by jurisdictional error.[39] [2018] FCA 1229, [139]-[216].[40] [2018] FCA 1229, [139]-[140]. Mortimer J recognised that a distinction should be drawn between those cases in which a policy, being expressed in general terms, served to invite consideration of the relevant circumstances and left unaffected, the discretion which fell to be exercised, and cases where an executive policy, having been framed in highly prescriptive terms, was more likely “to encourage decision-makers to feel compelled to adhere to each part of it, follow its structure with strictness and approach the policy as if it formed part of the statute.”[41] [41] [2018] FCA 1229, [200].
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.