Federal Court of Australia

Sun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 395

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants’ Application for Extension of Time filed 6 October 2020 be dismissed.

2.    The Applicant’s pay the First Respondent’s costs as agreed or in default of agreement as assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    This is an application for an extension of time to file a notice of appeal against a decision of the Federal Circuit Court of Australia in which the trial judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) which had affirmed a decision of the Respondent to cancel the First Applicant’s State/Territory Sponsored Investor (Provisional) (Class UR) (Subclass 165) visa (Visa).

2    The application for an extension of time was filed by Ace Solicitors, a firm of Brisbane lawyers and supported by an affidavit affirmed by Ms Ardelean, a solicitor in their employ.

3    A draft notice of appeal setting out the Applicant’s proposed Grounds of Appeal was attached in the following terms:

1.    The Federal Circuit court erred in finding that a conclusion by the Migration Review Tribunal, that the funds were provided by the appellant were encumbered, was considered by and open to the Migration Review Tribunal because:

a.    The Migration Review Tribunal incorrectly considered whether or not the property in China was encumbered, as opposed to whether or not the Funds provided by the applicant was encumbered.

b.    The Migration Review Tribunal did not consider Chinese Law when the natural meaning of an encumbrances encompasses a legal right which, in the circumstances, could only have derived from Chinese law, and not from Australian law.

4    On 28 October 2020, Registrar McCormack made orders directing the parties to take a number of steps in preparation for the hearing of the application. Registrar McCormick subsequently revoked those directions and substituted for them those made on 2 December 2020. Order 7 of those directions provided that if the applicant was represented, their lawyer was to file and serve a written outline of submissions no later than 20 business days before the hearing.

5    On 23 March 2021, with the time for the hearing having been advised to the parties to be at 10:15am on 14 April 2021, the Court made orders by consent vacating Order 7 as earlier made by Registrar McCormick and giving the Applicants until 4:00pm on 31 March 2021 to file and serve an outline of submissions.

6    Notwithstanding that extension having been granted, no written submissions were filed on the Applicant’s behalf. When the matter was called on for hearing on the morning of 14 April 2021 there was no appearance on behalf of the Applicants. No notice of ceasing to act had been filed by their lawyers.

7    From the bar table, counsel for the Respondent (the Minister), Mr Psaltis, advised the Court that in preparation for the hearing his instructors had spoken to the Applicant’s solicitors and had been given to understand that a Mr Stevenson would be appearing to make oral submissions on behalf of the Applicants.

8    Mr Psaltis submitted that in circumstances in which the Applicants were on clear notice of the hearing, had failed to provide any written submissions, and in which their lawyers had given no explanation for their non-appearance at the hearing, it could be concluded that the Applicants had chosen to take no further part in the hearing of their application. Mr Psaltis submitted the Court ought to proceed to hear from the Minister and to determine the application.

9    I accepted Mr Psaltis’ submission on the basis that there was nothing before the Court from the Applicants or their lawyers by way of seeking an adjournment or by way of explanation of the above circumstances.

10    The Court then heard from Mr Psaltis in support of the written submissions he had filed on behalf of the Minister. However, against the possibility that some mischance have befallen the Applicants’ lawyers to prevent them attending the hearing at the allocated time, I then adjourned the hearing until 3:30pm to allow enquiries to be made by my Associate of Ace Lawyers regarding whether there was any explanation for the Applicants’ non-appearance at the hearing and, if so, to allow for the possibility that the Applicants might still seek to be heard. There was no response to those enquires. When the hearing was resumed at 3:30pm I was accordingly satisfied that the Applicants had had every opportunity to be heard but had not availed themselves of it.

11    Having earlier heard from Mr Psaltis on behalf of the Minister, when the hearing was resumed I gave ex tempore reasons for dismissing the Applicants’ application for an extension of time. These are my reasons revised from the transcript.

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.

extension of time application

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.

Ground 1(a)

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.

Ground 1(b)

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.

Associate:

Dated:    21 April 2021