Tran v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 225
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 225
File number: MLG 2213 of 2022 Judgment of: JUDGE FORBES Date of judgment: 14 March 2024 Catchwords: MIGRATION - judicial review of refusal to grant applicants a Business Innovation and Investment visa – requirement for applicants to make a “designated investment” of $1.5m – where applicants invited to make investment – whether designated investment made when funds deposited – proper construction of visa criteria considered – whether additional steps imposed by department required to be met – where delegate misapplied criteria - whether delegate should have made obvious inquiry about a critical fact – where delegate unreasonably failed to make inquiry – error found Legislation: Migration Act 1954 (Cth) s 54, 56, 65
Migration Regulations 1994 (Cth) reg 5.19A, cl 188.246
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312
BUG16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 325
Minister for Immigration and Citizenship v Le [2007] FCA 1318
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251
SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403
Wei v Minister for Immigration and Border Protection [2015] HCA 51Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 30 March 2024 Place: Melbourne Counsel for the Applicants: Mr Krohn Solicitor for the Applicants: Cornwalls Lawyers Counsel for the Respondent: Ms Martyn Solicitor for the Respondent: Clayton Utz ORDERS
MLG 2213 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI LAM PHUONG TRAN
First Applicant
PHUONG VY NGUYEN
Second Applicant
CHON HUNG NGUYEN (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.A writ in the nature of certiorari be issued quashing the decision of the Respondent made on 29 August 2022.
2.A writ of mandamus be issued directing the Respondent to hear and determine the Applicants’ application according to law.
3.The Respondent pay the Applicants’ costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this proceeding the applicants, a family unit, seek judicial review of a decision made by a delegate of the respondent (the delegate) on 29 August 2022 to refuse the grant of Business Innovation and Investment (Provisional) (subclass 188) visas (the visas).
The applicants advance four grounds of jurisdictional error. However, these grounds can be distilled to two primary contentions. First, that the delegate misunderstood or misapplied the relevant statutory test regarding the making of the “designated investment” that the applicants were required to make in order to meet the criteria for the grant of the visas. Secondly, that the delegate unreasonably failed to make an inquiry about the status of the “designated investment” before making a decision to refuse the visas. The applicants allege that this was an inquiry about a critical fact, the existence of which could have been easily ascertained[1], and that the failure of the delegate to make such an inquiry constituted jurisdictional error.
[1] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) per French CJ, Gummow, Hayne, Crennan Kiefel and Bell JJ
For the reasons set out below, I have determined that the decision of the delegate was affected by jurisdictional error. Save for the declaration, the applicants are entitled to the relief sought in the application for review.
BACKGROUND
The following is a summary of the relevant facts as derived from the Court Book and the submissions of the parties. The facts are agreed unless otherwise stated.
The applicants are Vietnamese citizens. Ms Thi Lam Phuong Tran is the principal applicant, and the wife of the second applicant, Mr Phuong Vy Nguyen. The third and fourth applicants are their children. The second, third and fourth applicants, as members of the first applicant’s family unit, are eligible for the grant of the visa if the first applicant is successful.
On 9 October 2020 the applicants were invited to apply for the visas by the Minister for Home Affairs[2]. The invitation was nominated by the State of New South Wales. Where, as here, an invitation to apply for the visa was extended before 1 July 2021, a requirement for the grant of the visa is that the applicant has made a designated investment of at least $1.5 million (AUD) in the State or Territory in which the nominating State or Territory government agency is located[3].
[2] Court Book (CB) 1
[3] Migration Regulations 1994 (Cth), Schedule 2, clause 188.246
The applicants subsequently applied for the visas on 19 November 2020 with the assistance of a migration agent (the applicant’s representative).
Over the course of subsequent months the applicants and the applicants’ representative provided the Department of Home Affairs (the Department) with a large number of documents and evidence including the applicants’ personal details and identification documents, information for character assessment, the principal applicant’s business and employment history, details of their financial strength and investment experience, details of assets which were to be the source of funds for the designated investment of $1.5 million (AUD) and the trail of transactions (including from the sale of land in Vietnam and Victoria) releasing the funds for the designated investment. The principal applicant also made a statement of commitment to invest and settle in Australia.
On 17 November 2021 the delegate requested further information in the form of a checklist. The checklist sought evidence, inter alia, “to meet clause 188.243 and 188.244”. The request for further information also included an explanation of the evidence the Department required in order to establish:
“[…] that you, or together with your spouse or partner have made a designated investment of at least AUD1.5 million in a state or territory government security using unencumbered funds accumulated from qualifying businesses and/or eligible investments and will hold the investment for at least four years from date of issue in your nominating state or territory.”[4]
[4] CB 530
The information request goes on to explain that:
“Please note: you will be given 70 days to make the designated investment once all requirements are met for this application, so please ensure the intended source of funds declared above can be invested within 70 days after the request.”[5]
[5] CB 531
The applicants’ representative responded to this request in several emails sent between December 2021 and January 2022[6].
[6] CB 547-577
On 15 March 2022, the Department informed the first applicant that her “[…] application had reached the stage where you are invited to select and make a Designated Investment of at least AUD1.5 million in Australia”[7]. The invitation to make the investment was expressed in the following terms (the three-step request):
“If you still intend to use the above assets to make your investment, you should complete the following steps:
1.Select a Designated Investment in the State or Territory which has nominated you for this visa. It is your responsibility to obtain all necessary information from the Australian State or Territory government agency on their investment products and associated application procedures.
2.Complete the declaration at Part B of the enclosed Form 1031 Declaration Business Skills visa class - Investor, State/Territory Sponsored Investor and Business Innovation and Investment (Provisional) visa in Investor stream Other - Investor Retirement (Designated Investment). Forward the form with your investment application to the Treasury Corporation in your sponsoring State or Territory. You must make the Designated Investment in your name, or jointly in the name of you and your spouse or de facto partner. On receipt of your investment funds, the registry of the Treasury Corporation in your sponsoring State or Territory will complete Part C of the form and return it to this office, as evidence of you having met this requirement for your visa application.
3.After making your Designated Investment, provide evidence of having used those assets listed above to make your investment to this office. This may include evidence of sale of assets, transfer of funds or other documentation. This evidence needs to show the steps from liquidation of each asset to lodgement of the funds with the Treasury Corporation in your sponsoring State or Territory.”
[7] CB 579
The timeframe for a response was expressed:
“You must respond to this invitation within 70 days after you are taken to have received this Letter. This means that you need to complete the last step required from you within this timeframe.”
The invitation from the Department included a Form 1031 Declaration, Part A of which had been signed off by a departmental officer of the Business Innovation & Investment Program in Adelaide. Part A of that form was signed on 15 March 2022 and confirmed that the first applicant was now required to select a designated investment of a minimum $1.5 million (AUD).
The Form 1031 contains a narrative which explains the investment process in a manner which is similar, but not identical, to the narrative contained in the Department’s letter. Relevantly the Form states[8]:
“Part C of this form will be completed by the State/Territory agency in which you have made your investment. They will return the form directly to the office processing your application as evidence of your Designated Investment.
Your investment will become effective, and interest will commence, only on receipt of your funds by the relevant agency.”
[8] CB 583
On or about 22 April 2022 the first applicant completed and signed a formal application for NSW Waratah Fixed Rate Bonds[9]. The application stated that the investment would be in the amount of $1.5 million (AUD).
[9] Applicant’s Court Book (ACB) 4-12
On 29 April 2022, the first applicant executed a NSW Treasury Corp ‘Agent Letter of Authorisation’ which appointed an Australian solicitor “to communicate with Link Market Services (TCorp’s Registrar) with regard to my application to acquire NSW Waratah Bonds”. The letter of authorisation states that it will remain valid until either the application for the Bonds is complete or the letter is cancelled in writing[10].
[10] ACB 3
On 4 May 2022 the applicants’ representative wrote to the Department requesting an extension of time to make the investment on the basis that the funds that were to be invested would not be available until completion of a property settlement on 6 June 2022.
On 18 May 2022 the applicants’ representative wrote to the NSW Waratah Bonds registry. The correspondence[11] enclosed a copy of the letter of authorisation to act as agent. The solicitor’s correspondence included a number of documents relevant to the application for the Bonds, including:
(1)the completed and signed application form;
(2)certified copies of relevant identification documents;
(3)completed and signed Part B of Form 1031[12]; and
(4)a copy of the letter from the Department inviting the first applicant to invest in NSW Waratah Bonds as a complying investment.
[11] ACB 2
[12] ACB 16
It is not contested in this proceeding that NSW Waratah Bonds meet the criteria as a “designated investment” as defined in Regulation 5.19A.
On 17 June 2022 the Minister’s delegate sent further correspondence to the first applicant[13], accepting the request for an extension of time and inviting the first applicant to respond within 70 days on the same terms as described above (the three-step request). The correspondence from the Department included a further Form 1031 with Part A signed by the departmental officer and dated 17 June 2022.
[13] CB 603-606
From July 2022 until early August 2022 there was considerable communication[14] between the registry for the Waratah bonds and the applicants’ solicitor regarding the finalisation of documentation to satisfy the registry about the source of the first applicant’s proposed investment.
[14] CB 626 - 630
On 11 August 2022 at 11.39am, the NSW TCorp Waratah Bond Registry sent an email[15] to the first applicant, copied to her Australian solicitor, which stated, inter alia:
[15] ACB 1
“Dear Mrs Tran
Thank you for your application to purchase $1,500,000.00 NSW Waratah Fixed Rate Bonds - Thi Lam Phuong Tran.
The documentation supplied complies with the terms of the Offer Documents and has been accepted for registration. To enable this process to be completed, please arrange for your investment funds to be electronically transferred to our bank account within 21 business days of the date of this email.
After transfer please provide us (by mail or delivery to the address below) with a certified copy of the transfer confirmation supplied to you by the bank that held the funds. The bank’s confirmation should clearly demonstrate that the funds have been remitted from the account identified by the Department of Immigration and Border Protection in their letter inviting you to make your complying investments.
Details of our bank account are as follows:
Name of Bank: [details set out in original email]
BSB:
Account Name:
Account Number:”
On 12 August 2022 the primary applicant made a deposit of $1.5 million (AUD) into the bank account nominated by NSW Treasury Corporation Registry in its email the previous day.
On 24 August 2022, in response to a query from the applicants’ solicitor about the status of the deposit[16], an officer from Link Market Services, the Registry for NSW Waratah Bonds, confirmed that funds in the amount of $1.5 million (AUD) had been received on 12 August 2022 “which now waiting to your stage 2 documents before I am approving this application”[17].
[16] CB 625
[17] CB 625
On 29 August 2022 at 3.11pm, a delegate of the Minister sent an email to the applicants’ representative, attaching the delegate’s decision to refuse to grant the visas on the basis that clause 188.246 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) had not been met. The delegate held that no evidence of completion of the designated investment, or evidence of progressing the designated investment, had been received by the Department. The letter stated that “there is no right of merits review for this decision”[18].
[18] CB 611
The Minister and the applicants agree that the 70 day window for the first applicant had to respond to the invitation to invest ended on 26 August 2022[19]. The Minister asserts that the first applicant did not provide a response to the request made on 17 June 2022 by the end date.
[19] Applicant’s Supplementary Submissions at [2]
About an hour later, at 3.49pm (South Australian time) on 29 August 2022, the applicants’ representative responded to the delegate, indicating that the designated investment had been made on 12 August 2022 and requesting that the delegate’s decision be vacated to provide the applicants with an opportunity to comment and submit information[20]. The email to the delegate attached the email chain between the applicants’ representative and the NSW Treasury Corporation, in which the NSW Treasury Corporation confirmed on 24 August 2022 that the funds had been received on 12 August.
[20] CB 634
On 30 August 2022 at 1.28pm the Department sent an email to the applicants’ representative acknowledging receipt of the 29 August 2022 email[21] and further stating:
“The matters you have raised are currently being considered by the Department and a further response will be provided to you once it is available. I cannot provide a timeframe for this process.
The fact that the Department is considering your feedback on this matter does not, of itself, mean that the outcome of the decision will change.”
[21] CB 637
Less than half an hour later, at 2.05pm, on 30 August 2022, the investment agency of New South Wales, sent an email with Form 1031 completed and a certificate of inscription. Within the hour, the applicants’ representative responded to the Department[22], attaching documents from the NSW Treasury Corporation which showed that the assessment of the designated investment had been approved that same day, and that interest would commence[23].
[22] CB 636
[23] CB 641
On 2 September 2022 the NSW Treasury Corporation forwarded the completed Form 1031 and Certificate of Inscription for the first applicant to the Department. Part C of the Form 1031 Confirmation of Investment - had been completed by an administrator from the NSW treasury Corporation Registry. Part C was signed and dated on 2 September 2022 and recorded that the amount of $1.5 million (AUD) had been deposited on 30 August 2022.
On 14 September 2022 the applicants’ representative also forwarded the Certificate of Inscription to the Department.
On 26 September 2022 the Department wrote to the applicants’ representative informing her that the Department was “satisfied that the decision to refuse to grant the visa was lawful”.
On 3 October 2022 the applicants initiated an application for judicial review of the delegate’s decision.
APPLICATION FOR JUDICIAL REVIEW
In the originating application, the applicants advanced five grounds of review.
Ground one was abandoned prior to the hearing. Particulars (a) of grounds three, four and five were also abandoned prior to the hearing. Accordingly, the grounds on which the applicants seek to impugn the decision of the delegate are as follows:
“2.The officer fell into jurisdictional error in that he erred in interpreting or applying the law.
Particulars
(a)The officer erred in interpreting or applying the term “The applicant has made a designated investment” in item 188.246(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a Business Innovation and Investment (Provisional) (subclass 188) visa in the Investor Stream, by requiring that certain further steps be taken beyond the transfer of the required funds […]
(b)The officer did not consider whether to get more information, and did not in fact seek more information, whether under section 56 of the Act or otherwise, about the progress of the Applicants’ investment before making the decision, when that “was a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained… [and had] a sufficient link to the outcome to constitute a failure” to determine the application under section 65 of the Act, as considered in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 [25].
3.The officer fell into jurisdictional error in that he denied procedural fairness to the Applicants.
Particulars
[…]
(b) The Applicants refer to and repeat particular (b) to Ground 2.
4.The officer fell into jurisdictional error in that he failed to consider relevant considerations.
[…]
5. The officer fell into jurisdictional error in that he was legally unreasonable.
Particulars
[…]
(b)The Applicants refer to and repeat the particulars to the other Grounds of this application.”
LEGAL FRAMEWORK
Pursuant to s 65 of the Migration Act 1958 (Cth) (the Act) the Minister must grant a visa if satisfied, inter alia, that the criteria for the visa prescribed by the Act or the regulations have been satisfied. Conversely, the Minister must refuse to grant a visa where they are not so satisfied.
A criterion for the grant of the Business Innovation and Investment (Provisional) (subclass 188) visa was that “[…] the applicant has made a designated investment” as required by clause 188.246(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) in response to an invitation to apply for the visa.
At the time of the application, clause 188.246 relevantly provided as follows:
“188.246
(1A)If the time of invitation to apply for the visa was before 1 July 2021, the requirements in subclauses (1) and (2) are met.
(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.”
Clause 188.111 provides that for the purposes of Schedule 2, the expression “designated investment” means “an investment in a security that is specified for this part by the Minister under regulation 5.19A”.
Regulation 5.19A provided as follows:
“Designated investment
(1)Subject to subregulation (2), the Minister may, by legislative instrument, specify a security issued by an Australian State or Territory government authority as a security in which an investment is a designated investment for the purposes of a Part of Schedule 2.
(2) The Minister may so specify a security if and only if:
(a)an investment in the security matures in not less than 4 years from its date of issue; and
(b) repayment of principal is guaranteed by the issuing authority; and
(c)an investment in the security cannot be transferred or redeemed before maturity except by operation of law or under other conditions acceptable to the Minister; and
(d)investment in the security is open to the general public at commercially competitive rates of return; and
(e)the Minister is satisfied that the Commonwealth will not be exposed to any liability as a result of an investment in the security by a person.”
As to the information which informs the Minister’s state of satisfaction or non-satisfaction about relevant visa criteria, section 54 of the Act provides:
“Minister must have regard to all information in application
(1)The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2)For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3)Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.”
Further, section 56 of the Act provides that 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”.
FINAL HEARING
The application was listed for hearing before me on 30 March 2023. Mr Krohn of counsel appeared for the applicants and Ms Martyn of counsel appeared for the Minister.
Prior to the hearing each of the parties filed written submissions, and the Minister filed a court book, in accordance with Court orders. The applicants filed an additional court book comprising documents referred to in the affidavit of the applicants’ solicitor Kha Nhi Dao sworn 3 October 2022.
On 16 March 2023 the applicants filed a supplementary written submission which abandoned some of the initial grounds and particulars. The applicants’ supplementary submission also addressed a number of the arguments raised by the Minister and sought to introduce further evidence through a second affidavit of Kha Nhi Dao. The additional evidence seeks to establish that the same delegate of the Minister, in another similar case, took a different approach to the assessment of the Business visa application, including by seeking further information from the applicants representative[24] before making a decision on the application.
[24] Notably the applicant’s representative in the other case referred to was the same law firm that represented the applicants in the present matter
Objections were raised by the Minister about the affidavits sought to be relied upon by the applicants. After hearing the arguments, I ruled that the affidavits should be admitted.
The parties’ representatives relied upon their written submissions and developed them orally at the hearing.
Applicants’ submissions
The applicants’ four grounds of judicial review can be distilled to two propositions.
First, it is submitted that on a proper construction of clause 188.246, the criterion for the grant of the visa is met if as an objective fact the first applicant has “made a designated investment of at least AUD1,500,000” before the decision on the visa application is made. The applicants say it is the objective fact of the designated investment which meets the criteria and is the dispositive issue, not whether evidence of that fact has been produced to the delegate prior to the decision. In this respect the delegate misunderstood or misapplied the law (ground 2(a))
Secondly, the applicants contend that in reaching a state of non-satisfaction on the dispositive issue and making the decision to deny the visas, the delegate failed to make a simple inquiry about the state of the investment process. This lack of inquiry was, the applicants argue, a misinterpretation of the law (ground 2(b)), a denial of procedural fairness (ground 3), a failure to consider relevant considerations (ground 4), and/or was legally unreasonable (ground 5).
In relation to this second proposition, the applicants submit that the delegate’s failure to request further information about the status of the designated investment, whether through s 56 or otherwise, was “was a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained… [and had] a sufficient link to the outcome to constitute a failure”[25].
[25] SZIAI
In his decision, the delegate said:
“The timeframe [of 70 days to provide a response to the request to make a designated investment] has now elapsed and to date, no response from the applicant, no evidence of completion of the designated investment nor evidence of progressing of the designated investment has been received by the Department.
As no above-mentioned information has been received, I am proceeding to make a decision on this application in accordance with Section 54 of the Act which provides that a decision may be made on the information at hand.
The applicant has not provided any further evidence and has not made the designated investment of at least AUD 1,500,000 in accordance with subclause 199.246.
Therefore, I am not satisfied that the applicant satisfies clause 188.246 for the grant of a visa.”
The applicants submit that the delegate made an error of law in his interpretation of clause 188.246(1) of Schedule 2 of the Regulations by imposing on the applicants a requirement to take further steps beyond the transfer of the required funds. It is submitted that clause 188.246(1) merely requires the first applicant to make the designated investment, whereas the three-step request in the delegate’s letter dated 17 June 2022 overlays additional obligations, imposing a requirement that the first applicant provide the Department with evidence of having made the investment and that the evidence be produced within the 70 day timeframe.
The applicants submit that on a correct reading of the legislation, the designated investment should be taken to have been made when the required amount of $1.5 million (AUD) was invested into the NSW Treasury Corporation’s bank account on 12 August 2024, in accordance with the payment instructions provided by the Waratah Bond issuer. The applicants submit that the relevant criterion in clause 188.246(1) is met by the making of the investment in the manner described above - it being a point in time event to be determined as an objective fact.
The applicants contend that the imposition of further or additional administrative or evidentiary steps by the delegate, such as requiring a completed Part C of Form 1031 to be issued by the NSW Treasury Corporation to the Department, are steps outside of the first applicant’s control and only go to evidence the investment already made. The applicants that there is a critical distinction to be drawn between the making of a designated investment on the one hand and providing evidence that a designated investment has been made on the other. It is submitted that the criterion in clause 188.246(1) is met by the former, not the latter.
The applicants contend that the production of evidence did not form part of the act of making the investment itself. Accordingly, the three-step process as laid out in the Department’s letter of 17 June 2022 should be viewed as imposing additional requirements which do not form part of the criterion. It is submitted that by taking these additional irrelevant requirements into account, the delegate misconstrued the statutory criteria for the grant of the visa. Insofar as the delegate refused the visa on account of the first applicant’s failure to “produce evidence of completion of the designated investment nor evidence of progressing of the designated investment”, it is submitted that the delegate fell into error.
Further, while the applicants accept that s 65 requires the delegate to reach a state of satisfaction about whether or not the criteria for the relevant visa have been met, they submit that a state of satisfaction or non-satisfaction must be reasonably formed. The applicants submit that the delegate’s failure to make an obvious and simple inquiry of the first applicant or the applicants’ representative about the status of the intended investment before making a decision to deny the visas, was legally unreasonable and thus constituted jurisdictional error.
The applicants concede that the bar for legal unreasonableness is high and that it is fact dependent.
In an effort to contextualise the present matter, counsel for the applicants submitted that “these are not student visas”. The visa applications were made in 2020. They are applications of a very specific kind overseen and processed by a specialist office within the Department. The principal applicant and her husband are experienced, educated and well-established business people. The applicants had engaged experienced Australian solicitors to represent them and assist them to navigate the complex visa process, no doubt at considerable expense. A large number of documents provided in support of the applications have been professionally translated from Vietnamese to English. The applications involve the family’s relocation to Australia upon the acceptance by the New South Wales government of a very significant financial investment, funded by the sale of property in Vietnam. The paperwork to support the application is voluminous and the application has been burdensome. In short, the applicants submit that they are not time-wasters and that they have from the start been engaged in a process with a forward momentum.
It is submitted that given the huge volume of material before the delegate, and an active channel of communication between the Department and the applicants’ solicitors, it should have been apparent to the delegate that the applicants were heavily invested in the process and serious about advancing their applications to finality. For example, in the application for an extension of time, evidence was provided to the delegate to demonstrate that the principal applicant had commenced the sale of real estate in Vietnam - a significant step undertaken for the express purpose of freeing up funds to meet the designated investment criterion.
The applicants concede that at the time the delegate made his decision there was nothing before the delegate to inform him as to whether the designated investment had been made. However, they say that a simple phone call or email to the applicants’ representative would have revealed that $1.5 million (AUD) had been transferred to the NSW Treasury Corporation on 12 August 2022, in accordance with the TreasuryCorps specific banking instructions.
The applicants submit that in order to make the designated investment in the NSW Waratah Bonds and meet the relevant criterion, they had, by 12 August 2022, done everything that was required of them. The completion of Part C of the Form 1031 to evidence the investment was not in their power, nor was it a criterion for the visa.
The applicants say that if the delegate had made what was an obvious and simple inquiry about the status of the investment - whether the inquiry was directed by phone or email to the applicants, their solicitor or the issuer of the Waratah Bonds - that inquiry would inevitably and quickly have produced evidence about the dispositive issue and should have resulted in a different decision on the visa applications.
Simply put, the applicants submit that it was legally unreasonable or a constructive failure to exercise jurisdiction for the delegate to have reached a state of non-satisfaction on a dispositive issue without making the obvious inquiry, as in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429[26] (SZIAI) and Wei v Minister for Immigration and Border Protection [2015] HCA 51[27] (Wei).
[26] SZIAI at [25]
[27] Wei v Minister for Immigration and Border Protection [2015] HCA 51 at [51]
Further, as mentioned earlier, the applicants sought to rely on a second affidavit of the applicants’ solicitor, Ms Kha Nhi Dao. To that affidavit the solicitor annexed an email relating to an entirely separate Business and Investment visa application for which the applicants’ representatives also had carriage. The annexure is an email between the Department, sent from the same delegate who made the decision in this matter, and the legal representative. It reads:
“Dear Agent,
Please note that the prescribed period (as per the Departments IMMI Designated and Complying Investment letter) has now expired.
A decision may be made at any point based on information at hand […]”
According to the applicants, the email demonstrates that “the same delegate, in dealing with another application for a subclass 188B visa handled by the same representatives at about the same time, did not move to make a decision immediately after the expiry of the prescribed period without notice or without making some inquiry”[28].
[28] Affidavit of Kha Ni Dao sworn 24 March 2024 at [5]
The Minister opposed the reading of the affidavit, arguing that it was irrelevant. I allowed the affidavit to be admitted into evidence, albeit with some reservations. I consider it should be afforded limited weight and I do not consider that the delegate was bound to any particular practice or to act in the same way in assessing any two applications, no matter how similar. However, I do consider the evidence probative of the ease and flow of communication between the delegate and the applicants’ solicitor about issues pertaining to an application for this kind of visa.
Minister’s submissions
The Minister disagrees with the applicants’ construction of clause 188.246 as to when the requirement to make a designated investment will be satisfied.
Based on its construction of reg 5.19A of the Regulations, as set out above, the Minister submits that a designated investment is not made until the security has been issued by the relevant Australian State or Territory government authority, in this case the NSW Treasury Corporation. Further, again relying on reg 5.19A, the Minister submitted that no investment can be taken to have been made until interest commences to accrue, which in this matter did not occur until 30 August 2022 (4 days after the 70 day timeframe had elapsed).
Based on what the Minister contends is the proper construction of the relevant statutory provisions, the designated investment had not been made by the applicants on 12 August 2022 or at any other time before the delegate made his decision on 29 August 2022.
The Minister contends that a duty to inquire will only arise in rare and exceptional circumstances[29] and that this case is not a circumstance in which a duty to inquire came about.
[29] BUG16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 325 at [39] and [57]; Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 at [59]
Firstly, the Minister submits that the applicants have been unable to articulate the exact inquiry the delegate was supposed to make. An inquiry to “seek more information… about the progress of the applicants’ investments before making the decision” is too vague.
Secondly, the Minister submits that the delegate had already requested the applicants to provide evidence of their investment, in the letter sent on 17 June 2022. Therefore, the applicants had been given the opportunity and failed to do so within the required timeframe.
Thirdly, the Minister submits that it is unreasonable to suggest that the delegate should have requested information directly from the NSW Treasury Corporation, in circumstances where there is no evidence that the delegate was ever provided with contact details.
Finally, the Minister submits that it was the responsibility of the applicants to make their own case, particularly as they were represented in the application process, and had already been granted an extension of time[30]. Even if the designated investment was made on 12 August as contended for by the applicants, the Minister says the failure of the applicants or their representatives to produce evidence before the delegate’s decision is their fault and cannot constitute error on the part of the decision-maker.
[30] SZNBX at [29]-[30]
Further and in any event, the Minister submits that the delegate had already made an inquiry about the state of the investment on two occasions, firstly on 17 November 2021 when it asked the applicants to provide evidence of the funds they intended to use for the designated investment, and secondly on 17 June 2022 when it sent the first letter with the three-step request to make the investment. The Minister submits that it is for the first applicant to provide whatever evidence or argument she wishes to advance in support of her claims[31].
[31] Abebe v The Commonwealth [1999] HCA 14 at [187] (Abebe) cited in SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [29]
The Minister submits that in all the circumstances the delegate’s decision could not have been legally unreasonable. The applicants’ representative indicated that the investment would be complete by July 2022 following the first applicant’s property settlement. When no evidence of the investment was produced within the timeframe set by the delegate, it was open to the delegate to find that the designated investment had not been made.
CONSIDERATION
The requirement to have made a designated investment
At the relevant time it was a mandatory requirement for the grant of a Business Innovation and Investment (Provisional) (subclass 188) visa for the applicants to have made a designated investment of at least $1.5 million (AUD) in the State or Territory in which the nominating State or Territory government agency is located and that the investment has been made in the name of the first applicant (or jointly with his or her spouse or de facto partner)[32]. Compliance with this requirement is dispositive of the application.
[32] Migration Regulations 1994 (Cth), Schedule 2, clause 188.246(2)
As explained above, competing arguments have been advanced about the proper construction and operation of the legislative scheme. The applicants contend that the requirement is met when funds have been transferred to the recipient issuer of a complying security - in this case, 12 August 2022. The Minister submits that a designated investment has not been made until the securities have been issued and interest commences to accrue - in this case 30 August 2022.
In my view the applicants’ construction is correct. Whether a designated investment “has been made” by an applicant is an objective fact and in the context of clause 188.246 that fact is established by the transfer of funds by the applicant investor to the recipient agency where that agency is a designated investment for the purposes of reg 5.19A.
Reg 5.19A authorises the Minister, by legislative instrument, to specify a security issued by an Australian State or Territory government authority to be a “designated investment” for the purposes of a Part of Schedule 2. Reg 5.19A specifies the attributes that a particular security must have for it to be designated by the Minister as a designated investment. The regulation identifies the security itself as the designated investment. There is no issue in this case about NSW Waratah Bonds not being a security of that kind.
Notwithstanding clause 188.111, which defines “designated investment” for the purposes of clause 188, the context in which the words “to have made a designated investment” are used in clause 188.246(2) gives those words their own distinct meaning. There, the conjunctive phrase “to have made” engages the conduct of the first applicant. It is an expression in the past tense and implies the prior act of the applicants “making” a designated investment.
In reg 5.19A the term “designated investment” is a noun - a species of financial instrument specified by the Minister as a destination for an investment. It is not within the power of an applicant to “make” or “to have made”, in the sense of creating, a designated investment as the Minister is authorised to do under that regulation. Rather, it seems to me that clause 188.246(2) is directed at the mandatory requirement for an applicant to have engaged in the act of making an investment in a designated investment.
In other words, the expression “designated investment” in the relevant clause is intended to be descriptive of the first applicant’s conduct with respect to the specified security. That is the payment or transfer of funds by an applicant to a designated security or instrument is itself properly described as the making of a designated investment for the purposes of the clause.
This construction seems to be consistent with and is reinforced by the language used in the Department’s invitation to invest dated 15 March 2022[33].
[33] CB 579
Step 1 of the process directs the applicant to “Select a Designated Investment in the State or Territory which has nominated you for this visa”. Plainly this requires the applicant to identify a financial instrument which has been approved by the Minister pursuant to reg 5.19A.
Step 2 then asks for the applicant to “[…] make the Designated Investment in your name, or jointly in the name of you and your spouse of de facto partner. On receipt of your investment funds, the registry of the Treasury Corporation in your sponsoring State or Territory will complete Part C of the form and return it to this office, as evidence of you having met this requirement for your visa application”. Here the applicant is required to make an investment by transferring funds. The investment is complete at that point and Part C of the form serves only to provide evidence of what has occurred.
Based on what I consider to be the proper construction, I agree that the question of whether the applicant has made a designated investment is to be determined as an objective fact. By requiring evidence of the transaction by a signed Part C of the Form 1031 the delegate misunderstood the law and imposed a further requirement for the grant of the visa.
The additional steps required by the delegate do not arise from statutory scheme. The 70 day time limit is not imposed by the regulations nor is there a requirement for the applicants to ensure that the recipient of the funds completes the relevant form within a prescribed period. The relevant criterion is that the first applicant has made a designated investment in the sense I have described above.
The making of a designated investment by the applicant was complete when the first applicant transferred funds to the NSW Treasury Corp in accordance with the instructions and bank details given. The first applicant had been informed that her application for NSW Waratah Bonds had been approved. She was given instructions about how to complete the purchase and she transferred the funds as directed. The receipt of those funds was confirmed. Having done so, there was no more that the first applicant could do. The completion of Part C of Form 1303, to evidence the transaction, was in the hands of the NSW Treasury. The first applicant should be taken to have made the designated investment on 12 August 2022.
In my view the delegate misconstrued the law as contended for in ground 2 (particular (a)) of the application and fell into jurisdictional error.
Whether the delegate should have made an inquiry before refusing the visa
Section 65 of the Act confers upon a delegate the power to grant, or not grant, a visa depending on the delegate’s satisfaction or non-satisfaction about the criteria relevant to the application.
At the time the decision was made to refuse the visas, there was no evidence before the delegate that the applicants had made the designated investment.
There is no general duty for the decision-maker to undertake its own inquiries in addition to the information provided to it by the applicant and otherwise under the Act[34]. It is well-established that a decision maker has no duty to make his or her own inquiries in order to make out an applicant’s case[35]. Absent the availability of other information, it was open on the material before the delegate to refuse to grant the visas.
[34] SZIAI at [1]
[35] Abebe at [187]; STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251 at [25]
Nonetheless, there are circumstances in which a decision-maker may be bound by an implied duty to inquire. The Minister correctly submits that such a duty will usually arise only in rare and exceptional cases[36].
[36] Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] (Kenny J)
In SZIAI, the High Court said (referring to the review function of the Refugee Review Tribunal):[37]
“[…] It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
[37] SZIAI at [25]
The present case deals with the state of satisfaction (or non-satisfaction) of a departmental official about whether the applicants have or have not met a mandatory criteria for the grant of a visa. The critical fact was whether the applicants had made a designated investment, in the sense I have described earlier.
In his decision, the delegate said:
“The timeframe [of 70 days to provide a response to the request to make a designated investment] has now elapsed and to date, no response from the applicant, no evidence of completion of the designated investment nor evidence of progressing of the designated investment has been received by the Department” (emphasis added)
If the delegate had received evidence of the completed designated investment or even “progression toward the designated investment”, the decision on the application might have been different or perhaps the decision might not have been made without further information.
The decision maker in this case worked in the specialist office which dealt with Business Innovation and Investment visas. The relevant delegate knew the applicants were represented and had been involved in shepherding the application through the application process. There was a regular and open flow of communications between the Department and the applicants and their representatives over a long period of time – as one might expect with visa of this kind. The applicants on any view had committed significant time, money and resources to the process. There was a distinct forward momentum to the process and the Department had been appraised of the intention to make a designated investment and the sale of properties to free up the necessary funds. The applicants sought an extension of time and there was nothing to suggest that the applicants were not committed to finalising the application process.
Although the applicants or their representative could have told the delegate that the funds had been deposited and the designated investment made, they did not do so. That is unsurprising given they had followed the instructions of the Treasury corporation, completed their paperwork and done everything that was required of them. The process envisaged that the recipient of the funds would complete the loop and provide the necessary evidence of the investment by signing Part C of Form 1031.
At the time of making its decision to refuse the visa, the delegate did not have evidence of the investment. That might reasonably be expected to have raised an eyebrow, given the communication which had gone before. If the delegate had properly construed the criterion, he would have appreciated the possibility that the designated investment might have been made even though evidence of it had not arrived in his inbox. This should have enlivened an inquiry.
Before making the decision the delegate could easily have made a phone call or sent an email to the applicants, their legal representative or even the NSW Treasury Corporation. Information about the critical fact upon which the application turned was easily within reach of the decision-maker.
For example, relevant information about the status of the investment could have been easily ascertained by contacting the applicants’ representative, as demonstrated by the swiftness of the representative’s response upon receiving notification of the visa refusals on 29 August 2022. Moreover, there is evidence that the delegate in at least one other case was able to make enquiries of an applicants’ representative about the passage of their application before making a decision.
I do not accept any of those avenues of inquiry were beyond the delegate, such that additional probative information was not easily attainable. The information pertained to a determinative issue and should have been regarded as important.
In the particular circumstances of this case, the failure of the delegate to make the inquiry was unreasonable and constitutes a constructive failure by the delegate to perform his statutory task. I am satisfied that if an inquiry had been made by the delegate, it would almost certainly have unearthed information about the deposit of funds on 12 August 2022. That information would have informed the decision-making and very possibly led to a different outcome. That is enough to show that the error was jurisdictional.
I am persuaded that grounds 2 and 5 are made out.
DISPOSITION
For the reasons set out above, the decision of the delegate made on 29 August 2022 was affected by jurisdictional error.
The decision of the Minister will be quashed and the matter remitted to the Minister to be determined according to law. I have expressed my view about the proper construction of clause 188.246 of Schedule 2 to the Migration Regulations and what constitutes the making of a designated investment for the purposes of that clause. I anticipate my view will be taken into account by a delegate who next decides the application.
However, I am not presently inclined to make a declaration that the first named applicant meets the requirements of clause 188.246 for the grant of a Business Innovation and Investment (Provisional) (subclass 188) visa in the Investor stream. The application for judicial review succeeds on the ground that the delegate constructively failed to exercise jurisdiction by unreasonably failing to make an obvious inquiry. Determination of the factual question should be left to the delegate.
The Minister should pay the applicants’ costs to be agreed or in default of agreement to be in accordance with the scale set out in Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 14 March 2024
SCHEDULE OF PARTIES
MLG 2213 of 2022 Applicants
Fourth Applicant:
TRIEU HAI NGUYEN
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