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Sun v Minister for Immigration

Sun v Minister for Immigration

Case [2020] FCCA 2438 2 September 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2438

Catchwords:
MIGRATION – Application for State/Territory Sponsored Investor (Provisional) (Class UR) (Subclass 165) visa – requirement that funds used for Designated Investment not be encumbered – findings by Tribunal that funds were encumbered – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.109, 109(1)(c).

Migration Regulations 1994 (Cth), r.2.41, Sch.2, cl.165.222, cl.165.222(2)(b).

Cases cited:

Australian Leisure & Hospitality Group Pty Ltd v Director of Liquor Licensing

[2012] WASC 463.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

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

First Applicant:

LILI SUN

Second Applicant:

JUNMIN TAN

Third Applicant:

YINGSHI TAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 611 of 2019

Judgment of:

Judge Egan

Hearing date:

31 August 2020

Date of Last Submission:

31 August 2020

Delivered at:

Brisbane

Delivered on:

2 September 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Stevenson of Ace Law

Solicitors for the Respondents:

Ms Reid of Clayton Utz

Second Respondent:

Submitting appearance save as to costs

ORDERS

The Amended Application for Review filed on 27 May 2020 be dismissed.
The First and Second Applicants pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 611 of 2019

LILI SUN

Applicant

JUNMIN TAN

Applicant

YINGSHI TAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a citizen of the People’s Republic of China who applied for a State/Territory Sponsored Investor (Provisional) (Class UR) (Subclass 165) visa on 1 February 2011.
There are a number of criteria which must be satisfied by an applicant for such a visa at the time of the making of a decision in respect of such visa. Clause 165.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) relevantly provided as follows:
“165.222
(1) The applicant has made a designated investment of an amount of AUD750 000, in the name of the applicant or in the names of the applicant and his or her spouse or de facto partner, in the State or Territory in which the appropriate regional authority that sponsored the applicant is located.
(2) The Minister is satisfied that the funds mentioned in subclause (1) were:
(a) legally owned by:
(i) the applicant; or
(ii) the applicant’s spouse or de facto partner, or
(iii) the applicant and his or her spouse or de facto partner together; and
(b) unencumbered; and
(c) accumulated from the qualifying business or eligible investment activities of:
(i) the applicant; or
(ii) the applicant’s spouse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sun v Minister for Immigration

Details

AGLC: Sun v Minister for Immigration [2020] FCCA 2438
Case: [2020] FCCA 2438
Decision Date: 2 September 2020

CaseChat Overview and Summary

Sun (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse an application for a State/Territory Sponsored Investor (Provisional) (Class UR) (Subclass 165) visa. The core of the dispute concerned whether the funds the applicant proposed to use for a Designated Investment were encumbered, a requirement for the visa.

The primary legal issue before the court was whether the Administrative Appeals Tribunal (AAT) had made a jurisdictional error in its findings that the applicant's funds were encumbered. This involved an examination of the evidence before the AAT and whether its interpretation and application of the relevant migration regulations regarding encumbered funds were legally sound.

Judge Egan found that the AAT's findings were open to it on the evidence presented and that no jurisdictional error had been established. The court reasoned that the AAT was entitled to conclude, based on the documentation and submissions before it, that the funds designated for the investment were subject to encumbrances, thereby failing to meet the visa requirements. Consequently, the application for judicial review was dismissed.

Orders