Sun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

background 12 The Applicants in this proceeding are Chinese nationals. 13 On 1 February 2011 the First Applicant applied for a Visa. The First Applicant submitted a further form on 24 September 2012, and further information again on 19 March 2013 regarding the investment that was made as required by the Visa criteria. 14 On 22 August 2014, the Applicants were granted the visas that they were seeking on the basis that they had complied with cl 165.222 of schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) as follows: (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 or de facto partner; or (iii) the applicant and his or her spouse or de facto partner together. 15 However, documents filed in this proceeding reveal that on 6 September 2016, the Minister's department received information of proceedings that had been brought in China against the first and third Applicants that had resulted in a seizure order having been issued over a property located at Caobao Road. The seizure order had operation for a period of three years pending settlement of a debt between the Applicant parties and the purchaser. 16 On 6 October 2017, the Minister notified the Applicants of his intention to cancel the Visa that had been granted to them. The Applicants provided submissions in response. 17 On 22 December 2017, a delegate of the Minister cancelled the Applicants Visa. This was done on the basis that "the sale of the property which provided the funds for the investment was not genuine and it appeared that the money to finance the designated investment was borrowed". 18 The Applicants sought review of the delegate's decision in the Tribunal. The Tribunal heard from the Applicant parties. As is relevant to these proceedings the Tribunal recorded a finding as follows: 24. While Ms Sun asserts that she did not borrow money from Ms Zhou, there was no sale of the Caobao Road Property to Ms Zhou. The Caobao Road Property could not be considered unencumbered - either (1) Ms Zhou had an equitable interest in it following payment of the purchase price to Ms Sun; or (2) there was no genuine intention on the part of Ms Zhou to ever purchase the property, and she provided the funds to Ms Sun until the property could be sold to another buyer. In either case, the resulting impact is that Ms Sun has received funds from Ms Zhou which were not unencumbered. 19 The Tribunal reasoned that "…the Caobao Road Property was not unencumbered at the time that Ms Sun listed it on Form 1139 (Part E - Q11) as funds that were not borrowed and were to be used towards financing the Designated Investment...". In consequence the Tribunal concluded that the Designated Investment was not unencumbered for the purposes of r 165.222(2)(b) of the Migration Regulations. 20 At [33] the Tribunal then recorded a finding that the statement which had been made by the Applicant that she had not borrowed funds for the purpose of making that investment had been incorrect. Having regard to the above findings, the Tribunal affirmed the delegate's decision on 30 May 2019. 21 The Applicants sought review in the Federal Circuit Court of Australia (FCCA). That application was dismissed on 2 December 2020. As is relevant to these proceedings his Honour referred to the Tribunal's findings at [24]. His Honour's reasoning that that finding had involved no error of law was as follows: 9. The word "unencumbered" has not been defined in either the Act or the Regulations. In those circumstances, the ordinary meaning of the word should prevail. In Australian Leisure & Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 at [22], Hall J said: "[22]… If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended." 10. Clause 165.222 of Schedule 2 sets out qualifying criteria designed to satisfy the Department that an applicant is not a person of straw. To meet the criteria, an applicant must be able to satisfy the Department that they have accumulated investment funds sufficient to evidence their financial security. The criteria are not directed to whether or not an applicant has the capacity to borrow funds for the purpose of their making an authorised investment. 11. In the absence of definition, and consonant with what the Court considers was intended by the legislature when enacting cl. 165.222 of Schedule 2 to the Regulations, the usual meaning of the word unencumbered', when referring to funds, ought to be construed as meaning funds which were legally owned by a visa applicant which did not have the character of either loan monies, or monies otherwise the subject of a mortgage, charge or lien which could give rise to recovery action being taken in the event of some default on the part of the applicant. 12. At [27] of its reasons, the Tribunal correctly recorded that the issue before it was whether the information which the first applicant included in her visa application was correct or not. 22 On 6 October 2020, being 7 days out of time, the Applicants filed an application for an extension of time to file a notice of appeal, annexing the draft notice of appeal I have referred to above.

The Minister's Submissions 23 Mr Psaltis submits that the court has a discretion to grant an application to extend time to bring an appeal, but exercising that discretion favourably depends on three conditions as set out in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 being satisfied: (a) There is some acceptable explanation for the delay; (b) There will not be prejudice to the respondent in responding to the appeal; and (c) The merits of the substantive appeal justify leave being granted. 24 The Minister does not submit that he would be prejudiced by the delay nor that the application should be refused on the basis that no explanation has been given, albeit that is the fact. He submits that whether or not leave should be given turns on the merits of the proposed grounds of appeal, and neither of the proposed grounds has merit to such a degree that the application for an extension of time should be dismissed with costs.

The Minister's Submissions 25 Mr Psaltis submits that this ground is un-particularised, and is "a new ground which was not raised in any of the prolix grounds relied upon by the applicants before the learned trial judge". He submits that for both of those reasons it should be dismissed. 26 If not dismissed for those reasons, he submits in the alternative that this ground is entirely without merit.

The Minister's Submissions 27 Mr Psaltis submits that the "learned trial judge dismissed this ground on the basis that there was no evidence put before the Tribunal as to the content of foreign law such that any suggestion of error was without merit". Mr Psaltis says that the learned trial judge was correct to so conclude. 28 Mr Psaltis submits that it was for the Applicants to put before the Tribunal the content of Chinese law they wished the Tribunal to make particular findings in respect of it. They, having failed to do so, the Tribunal was "entitled to proceed upon the basis that Chinese law was relevantly the same as Australian law".

Consideration 29 I am not persuaded that Ground 1(a) is insufficiently particularised as to justify it being dismissed on that basis alone - in my view the gravamen of that ground is sufficiently identified as to permit it to be responded to. 30 However, I accept that it is a new ground which was not raised before the primary judge. In the absence of an acceptable explanation being advanced the Court is entitled to refuse to permit such a ground to be raised on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2014] FCAFC 158 at [48] (VUAX); Coulton v Holcombe (1986) 162 CLR 1. No explanation has been forthcoming and I would decline to allow that ground to be advanced having regard to the principle stated in VUAX and Coulton v Holcombe. Moreover I accept Mr Psaltis' further submission that putting that aside that principle, in any event the proposed ground appears to be entirely without merit. As the Minister's written submissions refer, [19] and [20] of the primary judge's reasons demonstrate that his Honour properly directed his attention to whether the Tribunal had identified that it was the funds rather than the property, which was materially encumbered. 31 As to proposed ground 1(b) I am satisfied that the primary judge was entirely correct to have reasoned that foreign law is a question of fact and that if the Applicants had wished to rely on it being to a different effect than that in this jurisdiction, the content of that law was for the Applicants to have proved. I do not accept the only means that might have been achieved in the Tribunal was by the adducing of expert evidence: the rules of evidence do not apply in proceedings in the Tribunal but it was inherently the Applicant's responsibility to establish the fact of that law and the difference if reliance was to be placed on it: DKXY v Minister for Home Affairs [2019] FCA 495 at [41] per Griffith J. In the absence of that being established by the Applicants the Tribunal was entitled to rely on the presumption that the foreign law was to the same effect as Australia's domestic law. 32 Further, it needs be said, the construction of an Australian regulation necessarily is exclusively a question of Australian law. No challenge is made to the primary judge's conclusion that the Tribunal did not err in approving of the Tribunal's construction of the relevant statutory provision. If it was to be asserted that there was some circumstance unique to China in which the correct application of the term "encumbered" needed to be accommodated it was for the Applicants to put that proposition to the Tribunal - the Tribunal was under no duty to enquire on its own motion as to whether there might be a possible scenario in which that possibility existed but had not been asserted. 33 I am satisfied, on the preliminary basis appropriate for the disposition of an application for leave to appeal out of time that proposed ground 1(b) is also without merit to a degree that does not justify an extension of time being granted. 34 I dismiss the application for an extension of time. The Applicants must pay the First Respondents costs as agreed or in default as may be taxed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.