Hu v Minister for Immigration & Multicultural & Indigenous Affairs

The case of Hu v Minister for Immigration & Multicultural & Indigenous Affairs involved the appellants, Hu and his wife, challenging the decision to cancel their visas and the subsequent refusal to revoke the cancellation. The primary issue before the court was whether the primary Judge's decision to dismiss the appellants' application on discretionary grounds was correct. Specifically, the court had to determine if the first appellant's failure to notify the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) that he had abandoned his proposal to establish a battery assembly business in Australia, and instead pursued another business venture, constituted a lack of candour warranting the dismissal of their appeal.

The court examined the grounds upon which the visa was granted, which required the first appellant to maintain a genuine and realistic commitment to the proposed business. The primary Judge found that the first appellant's actions demonstrated a lack of candour and disentitling conduct, as he had abandoned the proposed battery assembly business without informing DIMIA. This conduct, according to the primary Judge, was sufficient to deny the appellants' relief on discretionary grounds. Furthermore, the court found that the second appellant's position was dependent on the first appellant's statutory entitlements, and thus she could not be in a better position than him. The court also noted that the proposed acquisition of an established bookshop business could not serve as a basis for the grant of a subclass 457(7) visa.

In conclusion, the court upheld the primary Judge's decision, dismissing the appeal and ordering that the appellants pay the respondent's costs of the appeal. The court did not order any costs for the proceedings at first instance. This decision underscores the importance of candour and adherence to the conditions of visa grants, particularly in the context of business visas requiring a genuine and realistic commitment to the proposed business activity.