Pei and Ors v Minister for Immigration

Pei and Ors (the applicants) sought judicial review of a decision by a delegate of the Minister for Immigration to refuse their application for a Business Innovation and Investment (Provisional) visa (subclass 188) under the Significant Investor Stream. The applicants had made an offshore application for this visa.

The primary legal issues before the Federal Court were whether the delegate had erred in their interpretation of the term ‘unencumbered’ as used in the relevant migration regulations, whether the delegate made findings without an evidentiary basis, and whether any such findings were unreasonable, illogical, or irrational.

His Honour Judge Heffernan found that while there may have been an error in the delegate's interpretation of the term ‘unencumbered’, this error was not material to the ultimate decision to refuse the visa. The Court also found that the delegate's findings were not made without an evidentiary basis and were not unreasonable, illogical, or irrational. Consequently, the application for judicial review was dismissed.