Australian Immigration Daily News

Suppose you have a client who has made an application for a Business Innovation and Investment (Provisional) visa, Subclass 188 under the Significant Investor Stream (wouldn’t all RMAs like to have such clients!)?

Suppose further that the application has been refused at first instance by the Department and then an application for merits review has been made to the Tribunal.

Suppose yet further that at the hearing the Tribunal raises an issue as to whether the applicant has yet made the “complying investment”. 

If that investment has not yet been made, but the Tribunal is told by the applicant that it will be made within a short period of time, can the Tribunal refuse to grant an adjournment to allow time for the investment to be made, and proceed to affirm the refusal of the visa application?

Or is it “jurisdictional error” for the Tribunal to refuse to grant an adjournment in this scenario?

This question was considered in the case of Zhang v Minister for Immigration & Anor  (2017) FCCA 134 (30 January 2017).

Here’s the background of the case:

The Department’s policy regarding the timing of the requirement for making the complying investment specifies that an applicant should not be invited to make a complying investment until “the final stage of processing the visa application”.  The policy also says that officers are not to invite applicants to make complying investments until the applicant and family members have been assessed as meeting all other relevant criteria for the grant of the visa. And furthermore, policy goes on to say that in circumstances where an applicant needs to liquidate assets to make the complying investment, they should be given 70 days to liquidate the relevant investment and then to provide the Department with evidence that the complying investment has been made.

What happened in this case was that the applicant, a citizen of China, was planning to rely on funds that were a gift from her father, who had a successful construction business, to make the complying investment.

The application was refused in February 2015, on the basis that the department’s reviewing officer was not satisfied that the funds that would be used to make the complying investment were unencumbered and had been lawfully acquired.

The applicant sought merits review of the refusal of her application in March 2015.

In April 2016, the Tribunal issued an invitation to the applicant to attend a hearing scheduled in June 2016, and requested that any additional documents on which the applicant wished to rely should be submitted by late May 20016. In the event, the hearing was adjourned  until late July 2016; before the hearing, the applicant was given another written invitation which notified her that she should submit any further materials that she wished to rely upon to the Tribunal 7 days before the hearing.

When the case did come before the Tribunal for hearing, the Tribunal was apparently satisfied that the issue that had been of concern to the Department’s officer, whether the funds were unencumbered and had been lawfully acquired, 

Instead, the Tribunal characterized the “threshold” issue in the case as being whether the applicant had yet made the complying investment.

The applicant informed the Tribunal at the hearing that the investment had not yet been made, but that she would be able to make it in the next month, August 2016.

However, the Tribunal decided not to allow the applicant the few weeks additional time to make the complying investment. It reasoned that since the application had originally been made in 2014, that the Department had refused the application in 2015, and that the hearing, originally scheduled for May 2016 had already been adjourned until July 2016, the applicant had already had more than enough time to make the complying investment. The Tribunal also considered that because the applicant’s evidence was “inconsistent and unconvincing”, it had significant reservations concerning the applicant’s capacity to make the complying investment.

Consequently the Tribunal affirmed the Department’s refusal of the application and refused to grant the applicant an adjournment so she could have time to make the complying investment.

However, when the Tribunal’s decision was challenged in the Federal Circuit Court, the Court (Judge Riley) found that the refusal to grant an adjournment was legally unreasonable in the sense defined by the High Court in Minister for Immigration and Citizenship v Li.  

The Court reached this conclusion on the basis that the time limit imposed by the Tribunal was arbitrary, in view of the fact that the Department’s own guidelines allow 70 days after all other issues are resolved for the complying investment to be made, and further, that neither the Department nor the Tribunal was able to identify any harm resulting from allowing the applicant a few more weeks to make the investment.

The Court also found that the Tribunal’s refusal to grant the adjournment was infected by jurisdictional error by reason of the Tribunal’s failure to at least partially apply the Department’s policy guidelines concerning the timing for making a complying investment.  The Court considered the refusal to grant the adjournment to be unreasonable, arbitrary and capricious because: the delegate had decided the case on a different basis (namely that the funds were not unencumbered and lawfully acquired); that contrary to the policy guidelines, neither the Department or the Tribunal had ever asked the applicant to make the complying investment; again, that there was no identifiable  harm in allowing an adjournment; and that the Department’s policy (in allowing a significant period of time for the complying investment to be made after all other issues had been resolved) was considered to be a reasonable way of administering the regulations.

So the moral of the story is that if a decision of the Tribunal seems on its face to be harsh, overbearing and unfair, there may be a decent prospect of challenging it.

As the saying goes, if it walks like a duck and quacks like a duck, then maybe, just maybe…it is a duck!

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