Nguyen v Minister for Immigration - [2020] FCCA 2473

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN & ORS v MINISTER FOR IMMIGRATION

[2020] FCCA 2473

Catchwords:
MIGRATION – Application for Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa – failure by decision maker to have regard to, and intellectually engage with, claims raised in information provided by the applicants to the Department – legal unreasonableness established – decision quashed – application granted.

Legislation:

Migration Act 1958 (Cth), s.56.

Migration Regulations 1994 (Cth), Schedule 2, cl.188.246

Cases cited:

Minister for Home Affairs v Ogawa (2019) 269 FCR 536.

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No

2) (2004) 144 FCR 1.

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.

Minister for Immigration and Border Protection v CED16 & Anor (2020) 380

ALR 216.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.

First Applicant:

LUU THI Nguyen

Second Applicant:

viet thang le

Third Applicant:

nguyen minh thu le

Respondent:

Minister for Immigration, citizenship, migrant services and multicultural affairs

File Number:

MLG 1235 of 2020

Judgment of:

Judge Egan

Hearing date:

2 September 2020

Date of Last Submission:

2 September 2020

Delivered at:

Brisbane

Delivered on:

4 September 2020

REPRESENTATION

Counsel for the Applicant:

Ms G A Costello SC

Solicitors for the Applicant:

FCG Legal

Counsel for the Respondent:

Mr J Barrington

Solicitors for the Respondent:

Mills Oakley Lawyers

ORDERS

There be an order in the nature of certiorari that the decision of the respondent made on 19 March 2020 be set aside;
There be an order in the nature of mandamus, that the matter be remitted to the respondent for determination, according to law, by a person other than the person who handed down the decision on 19 March 2020.
The Respondent pay the Applicants’ costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Brisbane

MLG 1235 of 2020

Luu thi Nguyen

First Applicant

viet thang le

Second Applicant

Nguyen minh thu le

Third Applicant

And

Minister for Immigration, citizenship, migrant services and multicultural affairs

Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a citizen of Vietnam who made application for a Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa (‘the visa’) on 24 May 2018. [1] The second and third applicants are the children of the first applicant.
[1] Court Book (CB) p. 5.
Clause 188.246 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) relevantly provided as follows:
“188.246
(1) The applicant has made a designated investment of at least AUD1 500 000 in the State or Territory in which the nominating State or Territory government agency is located, and has made the investment:
(a) in the name of the applicant; or
(b) in the names of the applicant and his or her spouse or de facto partner.
(2) The funds used to make the designated investment mentioned in subclause (1) were:
(a) unencumbered; and
(b) accumulated from either or both of:
(i) one or more qualifying businesses conducted by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together; and
(ii) eligible investment activities of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.”
On or about 18 December 2019, funds in the amount of AUD $1,500,000.00 were used by the first applicant to purchase a Queensland Treasury Bond, in her name, as a “designated investment”. The making of such an investment was in purported compliance with cl. 188.246(2) of Schedule 2.
By letter dated 7 January 2020 sent by the Department to the first applicant, the Department accepted that the first applicant had provided evidence of the sale of a property situated at [address omitted] in Ho Chi Minh City in October 2018 for the sum of VND 21,600,000,000, but concerns were expressed as to there being no evidence of where funds from the sale of such property were held up until the time of the making of the Treasury Bond purchase. The concerns of the Department were expressed as follows: [2]
[2] CB p. 879.
“On 23 December 2019 you provided a flowchart and documents to demonstrate the trail of funds used to make the designated investment.
“Unfortunately on the documents provided I am not satisfied with the trail of funds for the following reasons:
You declared you were going to use partial proceeds from the sale of the property, [address omitted], Ho Chi Minh City to make the designated investment.
You provided sufficient evidence of selling this property in October 2018 for VND21,600,000,000 and receiving money from the buyer into your personal bank account.
However on 3 October 2018 you withdrew VND10,600,000,000 in cash and on 5 November 2018 you withdrew VND8,500,000,000 in cash from the ACB account, claiming on the flowchart that this is in readiness for the transfer to make the designated investment.
I am satisfied with the evidence of withdrawal of the above funds, but there is no evidence of where those funds were held from 3 October 2018 and 5 November 2018. Therefore there is not a sufficient trail that the above withdrawn funds were given to the Bao Bao Money Transfer Company from 22 November 2019 to 30 November 2019, by you from the sale of the property.
As such I have concerns that these funds were not unencumbered and there is no sufficient evidence that the funds were accumulated from the qualifying business or eligible investment activities of the applicant and the applicant’s spouse.
Please provide comments on the above findings and third party documents to support your claims.”
In response to the request made by the Department to the first applicant for her to make comments in support of her claims, further information was sent to the Department, on her behalf, by a firm called “Australian Immigration & Business Consultants”, by letter dated 20 January 2020. [3]
[3] CB p. 881.
Accompanying such letter were statutory declarations made by the first applicant, the first applicant’s husband, and a director of a company called BB Money Transfer Pty Ltd (trading as Bao Bao Money Transfer), which was the company used by the first applicant to transfer funds in the amount of AUD $1,500,000.00 to Australia for the purchase of the Queensland Treasury Bond.
The contents of such statutory declarations were respectively as follows: [4]
[4] CB pp. 886 – 894 inclusive.
“Commonwealth of Australia
Statutory Declaration
Statutory Declarations Act 1959
I, Luu Thi Nguyen of [address omitted], Ho Chi Minh City Vietnam make the following declaration under the Statutory Declarations Act 1959
1. In Vietnam, I run my own business selling clothing, material and buying and selling properties.
2. In conducting my business affairs, I predominantly use cash and the bank account is mostly used to collect payments from some customers, although I usually withdraw the money from the account after that to keep as cash at home.
3. There is a belief in Vietnam that keeping money in Vietnamese banks is not a safe method, there were many instances of customer's money being fraudulently stolen from their account by the bank itself.
4. For this reason, I do not have complete faith in keeping my money in the bank, rather I prefer to have my hard earned cash in my hand. Attached are some news articles regarding some cases where high ranking banking executives have been found guilty of fraudulently taking customer's money from their accounts.
5. A large part of my business cash flow involves payment of cash, so it is just easier for me to keep cash on hand at all times to pay suppliers and invoices.
6. At the time of the sale of my property at [address omitted], Ho Chi Minh City, I withdrew the money from my ACB account to get ready to transfer it to Australia for my visa application.
7. This is because after I spoke to Bao Bao Money Transfer company, they told me that their process involves handing over the money by way of cash, and I wanted to hand over the money at the time but they weren't able to do so as they needed the letter from the Australian Immigration Department before they can transfer the money to Australia. This is one of the main reasons why I kept the money as cash, as I thought that the visa application would soon be decided, so in my opinion this was the safest and easiest method to avoid any complications with my visa application.
8. As such, I kept the money that I withdrew from my ACB account on 3 October 2018 & 5 November 2013, totalling $19 1 billion VND in my safe at home. Attached is a photo of the safe at my home where the money was kept.
9. I confirm that I have kept this money in my safe until I handed over this very same money to Bao Bao Money Transfer Company in November 2019.
10. I further confirm that the money I kept from the sale of [address omitted], Ho Chi Minh City which was kept in my safe since 3 October 2018 & 5 November 2018 until November 2019 when it was handed over to Bao Bao Money Transfer Company were unencumbered and accumulated from my qualifying business and eligible investment activities.
11. Vietnam is a cash economy and a lot of people transact in cash, unlike in Australia where the banking system is stable and protected. I have always conducted my business and personal affairs in this way, it is the most practical and effective way of managing my finances.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.”

“Commonwealth of Australia
Statutory Declaration
Statutory Declarations Act 1959
I, Tiep Viet Le of [address omitted], Ho Chi Minh City Vietnam make the following declaration under the Statutory Declarations Act 1959:
1. I am the husband of Luu Thi Nguyen (her date of birth is 01/10/1973) and attached hereto is the copy of our marriage certificate.
2. Luu operates and manages her own businesses in clothing and material trading, and buying and selling properties.
3. Due to the instability of funds deposited into Vietnamese banks, many people in Vietnam are very wary of keeping large sums of money in bank accounts, preferring to keep cash on hand. This is due largely to cases in recent years of banks fleecing money from customer’s accounts.
4. A significant part of Luu's business expenditure involve payments made by cash, so Luu decided to withdraw monies from the business account and keep cash on hand at all times.
5. In relation to the sale of [address omitted], Ho Chi Minh City, we both decided at the time of the sale to withdraw the money from Luu's account to get ready to transfer it to Australia for the visa application. This is something that is important to Luu, so we decided it was the safest method to keep our money to send to Australia I personally attest to having seen Luu keeping this cash at our home in her safe.
6. We have previously spoken to the money transfer company and they mentioned that the process will involve us handing over cash to them, then they will transfer it to Australia for us, hence why we decided that keeping cash is the best method.
7. I wish to state that Vietnam is a cash economy, and many many people and business people conduct their financial affairs by way of cash, unlike in Australia where the banking system is stable and protected. This is a common way of managing wealth in Vietnam for people.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.”

“Commonwealth of Australia
Statutory Declaration
Statutory Declarations Act 1959
I, Hai Van Nguyen of [address omitted], Heathwood Queensland make the following declaration under the Statutory Declarations Act 1959:
1. I am the Director of BB Money Transfer Pty Ltd trading as Bao Bao Money Transfer as per the attached ASIC Company Search.
2. I confirm that Luu Thi Nguyen engaged Bao Bao Money Transfer to transfer $1.5 million AUD in November 2019 from Vietnam to Australia.
3. Before the transfer in November 2019, I informed Luu Thi Nguyen of the process involved with the transfer of money from Vietnam to Australia. One of the steps involved is that she would need to hand over the cash to my Agent in Vietnam, thereupon the money will be collected and an invoice given to her.
4. Luu asked me to initiate a money transfer in December 2018 but I informed her that our company was unable to transfer the money to Australia without a letter or invitation from the Australian Immigration Department.
5. In or around November 2019, Luu Thi Nguyen sent the Australian Department of Immigration letter of invitation to make a designated investment of $1.5 million Australian Dollars, and requested Bao Bao Money Transfer to transfer the funds from Vietnam to Australia.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.”

It was clear from a reading of the contents of the statutory declarations made by the first applicant and her husband that it was asserted that money withdrawn by the first applicant from her ACB account on 3 October 2018 and 5 November 2018 totalling some VND 19.1 billion was kept in a safe at the first applicant’s home. There was no evidence, or suggestion, that to do so would have constituted unlawful conduct on the part of the first applicant.
On 13 March 2020, a firm of lawyers in Brisbane called “Southside Lawyers” also forwarded to the Department, on behalf of the first applicant, a letter dated 13 March 2020 [5] together with a report prepared by an auditing and consulting firm called “Nexia STT Co” (‘Nexia’), the introduction to such report being as follows:
[5] Exhibit 2.
“We, Nexia STT Co., Ltd., member firm of Nexia International – “Top 9” Biggest Auditing and Consulting Firms in the World, would like to submit to you the following documents:
1. Auditor’s opinion on the sale of the property, [address omitted], Ho Chi Minh City, Vietnam
2. Documents relied on in preparing the opinion;
3. Factual observation on the legal check on house purchase in Vietnam; and
4. Factual observation on keeping money habit of Vietnamese people.”
As to item number 4 relating to the purported habit of Vietnamese people keeping money in cash rather than depositing it into a bank account, the Nexia documentation dated 12 March 2020 was as follows: [6]
[6] CB. p. 1064.

On 19 March 2020, a delegate to the Minister refused the application for the visa. Written reasons were provided by the delegate to the first applicant. At page 4 of the reasons of the delegate, it was said as follows:
“I have considered all of the information and documents provided however it still remains that the applicant has not provided verifiable documentary evidence of where the cash from the sale of the property, which the applicant withdrew on 3 October 2018 and 5 November 2018 from their personal ACB account was held until money was given to Bao Bao Money Transfer Company from 22 November 2019 to 30 November 2019 in order to make the designated investment.
As such I cannot be satisfied the funds used to make the designated investment were accumulated from the eligible investment activities of the applicant and the applicant’s spouse. Therefore I am not satisfied the applicant meets subclause 188.225(2). Accordingly, the applicant does not satisfy clause 188.225 in Schedule 2 of the Regulations.”
The parties agreed that such finding by the delegate was the central issue for consideration by this court.
On 16 April 2020, the applicants filed an Originating Application for Review of the decision of the delegate. It was common ground that such decision was a primary decision and that the application before the Court was an application for judicial review of such decision.
At the hearing before the Court on 2 September 2020, the applicants were granted leave to file and serve an Amended Application for Review, the grounds for which were as follows:
“Grounds of Application
1. The decision maker failed to have regard to or give real attention to the independent auditor’s report by Nexia STT Co Ltd and the applicant’s March 2020 submissions. The decision-maker thus failed to make a decision according to law as it is a breach of the delegate’s obligation in s 56 of the Migration Act, or alternatively because is a failure by the decision maker to carry out the jurisdiction.
2. The decision maker irrationally and/or unreasonably rejected evidence of statutory declarations from the first applicant and her spouse, and the independent auditor’s report prepared by Nexia STT Co Ltd. This error is jurisdictional as it comprised an unintelligible rejection of evidence about the dispositive matter as to whether the applicants’ 188 visa would be granted or refused, being the source of funds in the context of where money was located in a particular period.”

Grounds for Review

It was submitted on behalf of the applicants that Ground 1 of the Amended Application for Review was of two parts, namely:
a)a failure on the part of the decision maker to have due regard to information provided to the Department in breach of s. 56 of the Migration Act 1958 (Cth) (‘the Act’); and
b)a failure on the part of the decision maker to properly exercise jurisdiction in the consideration of the application for the visa.
Section 56 of the Act provided as follows:
“(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.”
The obligations of a decision maker under s. 56 of the Act were considered in Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at [95], [101], [102], [103] and [119] per Davies, Rangiah and Steward JJ as follows:
“[95] Section 56(1) of the Act provides that when the Minister gets information, he or she “must have regard to that information” in making the decision whether to grant or refuse the visa. The similar language of s 54(1) was described by Weinberg J in A v Pelekanakis (1999) 91 FCR 70 at [45] as plainly giving rise to a “duty” that is “mandatory”. The requirement in s 424(1) to “have regard to” information was described in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [36] as a “limitation” upon the power to get information that the review tribunal considers relevant. In our opinion, the imperative language of s 56(1), together with its role as part of the statutory natural justice hearing rule, indicates that compliance with the provision is a necessary pre-condition for the valid performance of the Minister’s duty under s 65(1): cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [68], [136], [173], [208]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [23]-[24].
…
[101] What is the Minister required to do in order to comply with his obligation to “have regard to” information under s 56(1) of the Act? In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152, Sackville J held that s 54(1) requires application of “an active intellectual process” directed at the information. That view was approved in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [46], [212]; see also Tickner v Chapman (1995) 57 FCR 451 at 462, 476 and 495; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]. That requirement may be regarded as part of an obligation imported by the use of expressions such as “consider” and “have regard to” to give proper, genuine and realistic consideration to the relevant matters: see Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [43]; cf Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [42].
[102] The Minister’s obligation to have regard to information under s 56(1) of the Act requires the Minister to engage in an active intellectual process directed at the information. In other words, the decision-maker must actively think about the information: He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [52].
[103] There is a distinction between the making of a decision by the Minister and the written notice given under s 501G(1) of the Act setting out his or her reasons: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at [40]. The distinction is that the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker: He at [79]. It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:
76 The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.
(Citations omitted.)
…
[119] In our opinion, this is such a case. We consider that the Minister failed to have regard to the information in Dr Whittington’s letter in breach of his obligation under s 56(1) of the Act.”

It was submitted on behalf of the applicants that the decision maker did not deal with a claim or claims raised by the evidence, or the contentions actually made to the decision maker which, if resolved in one way, would have been dispositive of the application for the visa. [7] It was submitted that such principle applied also to a lack of consideration by a decision maker of representations made to them, consequent upon their extending an invitation to an applicant, as was the case here, to “provide comments on the above findings and third party documents …” in support of the claims advanced. [8]
[7] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144
FCR 1 at [58] – [59] per Black CJ, French and Selway JJ.
[8] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [67] per Colvin
J.
On page 4 of the reasons of the Delegate, [9] the Delegate set out, without analysis or comment, matters which were referred to in the information provided by the first applicant in response to the request made by the Department for further comment. The decision record, in that regard, recorded the following:
[9] CB. p. 1074.
“To meet clause 188.246(2) the applicant provided emails dated 20 January 2020 and 13 March 2020 with documents to support the applicant’s claims of using the declared investments to make the designated investment. The documents and information provided amongst other things are:
·A statutory declaration from Hai Van Nguyen the Director of BB Money Transfer Pty Ltd trading as Bao Bao Money Transfer. This statutory declaration states amongst other things the following:
o“Before the transfer in November 2019, I informed Luu Thi Nguyen of the process involved with the transfer of money from Vietnam to Australia. One of the steps involved is that she would need to hand over the cash to my Agent in Vietnam, thereupon the money will be collected and an invoice given to her”.
o“Luu asked me to initiate a money transfer in December 2018 but I informed her that our company was unable to transfer the money to Australia without a letter or invitation from the Australian Immigration Department”.
·An Australian Securities and Investments Commission (ASIC) current company extract which declares Hai Van Nguyen as the Director of BB Money Transfer Pty Ltd.
·A statutory declaration from the applicant’s spouse which states amongst other things that:
o“In relation to the sale of [address omitted], Ho Chi Minh City, we both decided at the time of the sale to withdraw the money from Luu’s account to get ready to transfer it to Australia for the visa application. This is something that is important to Luu, so we decided it was the safest method to keep our money to send to Australia I personally attest to having seen Luu keeping this cash at our home in her safe”.
o“We have previously spoken to the money transfer company and they mentioned that the process will involve us handing over cash to them, then they will transfer it to Australia for us, hence why we decided that keeping cash is the best method”.
o“I wish to state that Vietnam is a cash economy, and many people and business people conduct their financial affairs by way of cash, unlike in Australia where the banking system is stable and protected. This is a common way of managing wealth in Vietnam for people”. (sic).
·A statutory declaration from the applicant which states amongst other things that:
o“I further confirm that the money I kept from the sale of [address omitted], Ho Chi Minh City which was kept in my safe since 3 October 2018 & 5 November 2018 until November 2019 when it was handed over to Bao Bao Money Transfer Company were unencumbered and accumulated from my qualifying business and eligible investment activities”. (sic)
·A news article regarding Vietnamese Banks, which has not been translated into English.
·A photo of a safe.
·Letters from Nguyen Viet Ng the Deputy General Director for Nexia STT Co. Ltd dated 12 March 2020 in regards to the sale of the property and relevant documents in regards to the sale of the property.
·A letter dated 12 March 2020 on factual observation on legal check on the house purchase from Nguyen Viet Ng which includes amongst other things their opinion which is “We believe that our factual observation on the legal check on house purchase in Vietnam is fair in every particular”. (sic)
·A letter dated 12 March 2020 on factual observation on the habit of keeping money at home of Vietnamese people from Nguyen Viet Ng which includes amongst other things their opinion which is “We believe that our factual observation on the habit of keeping money at home of Vietnamese people is fair in every particular”. (sic)”
Counsel for the applicants submitted that the mere reference by the decision maker to parts of the statutory declarations relating to the keeping of cash money in a safe, absent any considered and detailed analysis of such claim, did not constitute evidence of the decision maker having been engaged in an active intellectual exercise in relation to it. It was also submitted that by failing to so engage, the decision maker also failed to have regard to the contents of the information provided – both in relation to the statutory declarations as well as to the contents of the Nexia report relating to the common practice of Vietnamese people to often keep cash in a secure place under their control rather than risking its loss or partial loss if banked.
The Court accepts the submissions made on behalf of the applicants that the decision maker failed to engage in an active intellectual consideration of the contents of either the statutory declarations which clearly explained where the designated investment funds had been kept for over a year since the sale of a property owned by the first applicant, or in respect of the claimed common practice in Vietnam of people keeping cash in a safe place rather than in a bank. That issue, as earlier indicated, was agreed by both Counsel as being central to the question as to whether there had been a failure by the decision maker to grant the visa. The Court is unpersuaded that it ought to be inferred that the mere reference by the decision maker to some of the contents of the statutory declarations which went to the keeping of funds in a safe, without more, was illustrative of the decision maker having engaged appropriately with the issue at hand.
As to the contents of Exhibit 2, it was submitted on behalf of the respondent that as to the contents of the 13 March 2020 letter, such did not constitute “information” to which regard ought to have been had. It was submitted that the contents of the letter did not constitute knowledge of facts or circumstances relating to material or documentation of an evidentiary nature. The Court rejects such submission insofar as the letter contained submissions which either addressed specific parts of the statutory declarations and Nexia report relating to the safe keeping of money in cash, or otherwise included submissions responsive to the matters invited by the delegate to be commented on in the letter of 7 January 2020 sent by the delegate to the first applicant. Such submissions were in respect of facts or circumstances relating to material or documentation of an evidentiary nature, as was the subject of consideration by Gageler, Keane, Nettle and Gordon JJ in Minister for Immigration and Border Protection v CED16 & Anor (2020) 380 ALR 216 at [21], where it was said:
“[21] The plurality in Plaintiff M174/201617 explained that “[t]he term ‘new information‘ must be read consistently when used in ss 473DC, 473DD and 473DE as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event”. Adapting to the scheme of Pt 7AA the subsequent holding in SZMTA concerning the same terminology in Pt 7 of the Act, “[t]he term ‘information’ in the context of [Div 3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”.
The Court finds that the failure on the part of the decision maker to have due regard to the information provided consequent upon its own request for such information constituted jurisdictional error.
As to Ground 2 of the Amended Application for Review, the Court further finds that in circumstances where the evidence of the first applicant and the first applicant’s husband was not only unchallenged, but also factually consistent with the evidence before the decision maker that money had been set aside in a safe place for the purpose of the making of a designated investment, the finding that there was a lack of “verifiable documentary evidence” as to where the cash had been between October 2018 and November 2019, and the delegate’s reliance upon such absence as constituting a basis for refusal of the visa application, was legally unreasonable and plainly unjust. As was said by Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ:
“[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The delegate’s findings are suggestive of untruthfulness on the part of the first applicant and her husband, but there was no analysis by the decision maker as to why that might have been so. The Court adopts the analysis of a similar lack of explanation by the Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 175 at [31]-[41] inclusive.
Further, there was no intelligible justification for the finding that the absence of verifiable documentary evidence of where the cash had been for over a one year period justified the refusal of the visa application in circumstances where, ordinarily, no documentary evidence would come into existence during the process of a person either placing cash into a safe, or removing the cash from a safe. The decision maker did not attempt to explain why the absence of any documentary evidence could have been relevant to the decision making process in the circumstances then before them. The decision maker had accepted that sufficient funds for the making of the designated investment had accrued from the sale of property in 2018. There was no evidentiary basis for the decision maker to suspect that the content of the statutory declarations relating to the keeping of the money in the safe was untrue.
The decision maker erred in arriving at the decision it did, and the error was jurisdictional in nature.
As to the orders which ought to be made in the light of the Court’s findings, it was submitted on behalf of the first respondent that the second applicant’s application for a visa should not be remitted on the basis that such remitter would be futile as the second applicant was 23 years of age and of full capacity, such that he was no longer a member of the first applicant’s family unit able to succeed on any visa application.
It was submitted on behalf of the applicant that though the applicant was over 23 years of age, the quashing of the delegate’s decision in respect of the second applicant would not lack utility because if the refusal decision remained in place, the second applicant would fall into the category of persons to whom s. 48 of the Act applied, the effect of that being that the second applicant would be barred from making a further visa application whilst he was on-shore.
If the decision in respect of the second applicant was not quashed, the second applicant’s ability to apply for a visa on-shore would be adversely affected. In the absence of authority on point, and in the exercise of the Court’s discretion, the Court is not minded to accede to the first respondent’s submission.
The Amended Application for Review is granted. The decision made on 19 March 2020 is accordingly quashed.
The Court will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 4 September 2020