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

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

The application for an extension of time was dismissed because the proposed appeal grounds lacked sufficient merit to justify extending time. Proposed ground 1(a) was a new ground not raised before the primary judge and no explanation was given for raising it on appeal; in any event, the primary judge's reasons showed attention was directed to whether the funds, rather than the property, were materially encumbered. Proposed ground 1(b) was also without merit because the Applicants did not prove the content of Chinese law before the Tribunal, the Tribunal was entitled to presume it was the same as Australian law, and the Tribunal had no duty to inquire of its own motion into unasserted...

Jurisdiction
Australia
Judgment Date
14 April 2021
Procedural Posture
Migration Application for Extension of Time to File a Notice of Appeal / Federal Court Application for Extension of Time From a Federal Circuit Court of Australia Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Visa Cancellation
Outcome
The Applicants' application for an extension of time was dismissed with costs payable to the First Respondent.
Legal Topics
['extension of Time to Appeal' 'visa Cancellation' 'state/territory Sponsored Investor (provisional) (class Ur) (subclass 165) Visa' 'unencumbered Funds' 'foreign Law as Fact' 'new Grounds on Appeal' 'non Appearance at Hearing']
['migration' 'administrative Law' 'practice and Procedure'] ['extension of Time to Appeal' 'visa Cancellation' 'state/territory Sponsored Investor (provisional) (class Ur) (subclass 165) Visa' 'unencumbered Funds' 'foreign Law as Fact' 'new Grounds on Appeal' 'non Appearance at Hearing']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to File a Notice of Appeal / Federal Court Application for Extension of Time From a Federal Circuit Court of Australia Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Visa Cancellation

Legal Issues

  1. 1 ['Whether time should be extended for the Applicants to file a notice of appeal from the Federal Circuit Court of Australia decision.' 'Whether proposed ground 1(a), alleging error as to whether the funds rather than the property in China were encumbered, should be permitted and had sufficient merit.' 'Whether proposed ground 1(b), alleging failure to consider Chinese law in relation to encumbrances, had sufficient merit.' "Whether the Court should proceed in the Applicants' absence where they filed no written submissions and gave no explanation for non-appearance."]

Ratio Decidendi

The application for an extension of time was dismissed because the proposed appeal grounds lacked sufficient merit to justify extending time. Proposed ground 1(a) was a new ground not raised before the primary judge and no explanation was given for raising it on appeal; in any event, the primary judge's reasons showed attention was directed to whether the funds, rather than the property, were materially encumbered. Proposed ground 1(b) was also without merit because the Applicants did not prove the content of Chinese law before the Tribunal, the Tribunal was entitled to presume it was the same as Australian law, and the Tribunal had no duty to inquire of its own motion into unasserted...

Court Disposition

The Applicants' application for an extension of time was dismissed with costs payable to the First Respondent.

Orders

  • ["The Applicants' Application for Extension of Time filed 6 October 2020 be dismissed." "The Applicant's pay the First Respondent's costs as agreed or in default of agreement as assessed."]