HAN v Minister for Immigration

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.