Bo (Migration)

Bo (Migration) [2024] AATA 208 (1 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Srey Bo
Miss Sreyneang Yors
Miss Sreydeth Yors
REPRESENTATIVE:  Mr Russell Tien (MARN: 1175591)
CASE NUMBER:  2003932
HOME AFFAIRS REFERENCE(S): BCC2018/1791363 BCC2018/3822765 BCC2018/3822821 BCC2018/3822899 BCC2018/4427601 BCC2018/5624606 BCC2020/766190
MEMBER:Bridget Cullen
DATE:1 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Provisional) (Class EB) visas.

Statement made on 1 February 2024 at 12.38pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – significant investor stream – compliant significant investment – funds unencumbered and lawfully acquired – buying and selling property –limited education and work history – middleman to high-profile business people and informal money transfer service provider – common business practices – undetailed explanations and unsystematic documentation – very large cash deposits and withdrawals – no verifiable evidence that funds lawfully acquired – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 375A
Migration Regulations 1994 (Cth), r 5.19C(3), Schedule 2, cl 188.252(2)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2020 to refuse to grant the Applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicants applied for the visas on 24 April 2018. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one Applicant. Other members of the family unit who are Applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa Applicant (‘the Applicant’) applied for the visa in the Significant Investor Stream. The second and third named Applicants are the Applicant’s daughters.
On 10 January 2020, the Department advised the Applicant that she was unlikely to meet the requirements of cl 188.252, as it appeared that she would not meet the requirements of r.5.19C(3). The delegate invited the Applicant to withdraw her visa application or proceed with making an investment which was compliant with reg 5.19C.
On 6 February 2020, the Applicant advised the Department that she intended to make the complying significant investment. On 11 February 2020, the Applicant had not provided any evidence that she had made the complying significant investment of $5,000,000 (5 million AUD). The delegate in this case refused to grant the visas on the basis that the Applicant did not satisfy the requirements of cl 188.252 as the delegate was not satisfied the Applicant had made, on or after the time of application, a complying significant investment (within the requirements of r.5.19C(3)) of at least 5 million AUD.
Procedural History
There is a significant procedural history associated with the eventual hearing of this matter. The Tribunal has taken significant measures to ensure that the Applicant was provided with procedural fairness facilitating her ability to participate meaningfully in the hearing, and to present evidence and submissions to the Tribunal.
This matter was listed for hearing by the Tribunal on multiple dates, as set out below.
On 27 March 2023, the Tribunal sought to list the matter on a date suitable to the Applicant. A Tribunal officer contacted the Applicants’ representative, and informed the representative that information before the Tribunal suggested that the Applicant was onshore, and advised the representative that the Tribunal was seeking to schedule a hearing on a date convenient to her, and offered the dates of 13 or 27 April 2023. The representative advised that he was on leave on 13 April 2023, but would check with the Applicant about 27 April 2023, and advise asap.
On 28 March 2023 – The representative contacted the Tribunal, and advised that the Applicant was leaving Australia that same date. The Applicant’s representative further advised that:
As per my discussion with [Tribunal Officer], there is a tentative hearing date set for 27 April 2023. Please note however that the Applicant has also indicated that she may need further time to speak to financial advisors in relation to the complying investments however the Applicant has informed that she can return to Brisbane with at least 2 weeks notice. Given the above circumstances, it may be a more productive hearing if it was scheduled for late May or early June 2023.
On 29 March 2023, the Tribunal then listed the matter for a Teams Hearing, scheduled for 25 May 2023.
On 23 May 2023, the representative sought an adjournment of the hearing scheduled for 25 May 2023, on the basis that:
Ms. Srey Bo has a hearing scheduled for 25 May 2023. She was scheduled to arrive at 22 May 2023 however she had not realized that her visitor visa had expired on 14 May 2023 and so she was denied from boarding the flight. Please find attached her flight itinerary.
She had scheduled a meeting at our office today however evidently she would not be able to make it. We kindly request an adjournment of the hearing on 25 May 2023 until after 16 June 2023 to allow enough time for a new visitor visa to be granted. It is essential that Ms. Srey Bo be in Australia for the Hearing as she will be meeting in person with financial advisors in relation to the complying significant investment and this will form part of the evidence to be provided at the hearing.
On 24 May 2023, the Tribunal agreed to adjourn the hearing scheduled for 25 May 2023, and advised that a further date would be scheduled in due course. The matter was then reconstituted by the Tribunal to facilitate the Tribunal’s ability to conduct an in-person hearing in Queensland, where the representative was located, and where the Applicant frequently visited.
Following reconstitution of the matter, on 3 July 2023, the Tribunal invited the Applicants to attend an in-person hearing in Brisbane on 19 July 2023. On the 6 July 2023, the Tribunal also sent the Applicants an “Invitation to Comment on Validity of Application for Review” in relation to the application by the Applicant’s spouse, Mr Pheng Chy, with a return date of 20 July 2023. The Tribunal invited comments in relation to the following:
In order to have made a valid application, you must have been in Australia at the time
the application was lodged with us on 28 February 2020. It appears that you (Mr
Pheng Chy) were not in Australia on that date, and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.
On 11 July, the representative sought an adjournment of the hearing scheduled for 19 July 2023, for the following reasons:
The Applicant instructs that she will be arriving in Australia this week. However we kindly request for an adjournment of the hearing until after 28 July 2023 so that this will coincide after the deadline for the invitation to comment [20 July 2023]. In addition to this reason for seeking the adjournment, as per the previous correspondence with the AAT, our client had to reapply for a visitor visa which delayed her previous arrival in Australia. That visitor visa was granted on 31 May 2023 and this trip is the first time she will be visiting Australia since the grant of her latest visitor visa. As per the previous email, once she is here in Australia, she will be meeting with financial advisors in relation to the complying significant investment which will form part of the evidence for her application.
The Tribunal agreed to the postponement request and rescheduled the hearing for 31 July 2023. The Tribunal did not receive a response to the “Invitation to Comment on Validity of Application for Review”, and on 31 July 2023, the Tribunal made a decision that it did not have jurisdiction to hear Mr Pheng Chy’s Application.
On the morning of the scheduled hearing, 31 July 2023, the representative returned the “Response to Hearing Invitation”. The response indicated that the Applicant and representative would attend the hearing, and further that, “A suitcase full of documents have been provided by the review applicant recently and it is kindly requested that extra time be given to provide full submissions.” The representative also requested an interpreter.
The Tribunal observes that the Migration and Refugee Division Practice Direction seeks that Applicants respond to the hearing invitation no later than (7) days after receiving it; and that Applicants lodge evidence and submissions at least seven (7) days before the hearing. Neither of these aspects of the Practice Direction were adhered to by the Applicant. This makes it difficult for the Tribunal to prepare for the hearing, and to ensure that an interpreter is available.
The Applicant appeared for the hearing scheduled for 31 July 2023; however, confronted with the prospect of receiving a “suitcase full of documents,” the Tribunal adjourned the hearing to facilitate provision of same in advance of the next hearing, so that the Tribunal might turn its mind to the issues raised by the documents in advance of a hearing. The Tribunal advised the Applicant at the hearing, and then issued a hearing invitation, inviting the Applicants to attend a further hearing on 29 August 2023.
On 28 August 2023, the representative provided submissions to the Tribunal advising that the Applicant and Mr Pheng Chy had divorced, and that the divorce was finalised by the Phnom Penh Court of Instance on 3 August 2022. The Tribunal observes that, at the time of this response, the Tribunal had already made the 31 July 2023 decision that it did not have jurisdiction in relation to Mr Pheng Chy’s application.
On the morning of the rescheduled hearing, the representative sent the Tribunal further submissions and documents, acknowledging that in filing the additional material on the morning of hearing, there was again non-compliance with the Tribunal’s Practice Direction. The hearing commenced on 28 August 2023, and the Applicant appeared, to give evidence and present arguments, accompanied by her representative. The Applicant brought her support person, Ms Mao Chhoun, to the hearing, for emotional support during the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. Unfortunately, the Applicant had difficulties with the first interpreter and so the Tribunal excused the first interpreter, and made arrangements for a new interpreter to assist the Applicant.
Unfortunately, the Applicant also had difficulties with the second interpreter, who was assisting remotely by telephone. As a consequence, the Tribunal adjourned the hearing, to ensure that an effective interpreter could be sourced providing the Applicant an opportunity to fully participate in the hearing and ensure that the Tribunal understood her evidence.
The Tribunal then invited the Applicants to a hearing scheduled for 15 September 2023. The representative then sought an adjournment of the 15 September 2023 hearing, for the reason that the representative did not receive the hearing invitation, despite the Tribunal having properly sent it:
Unfortunately this email was not received by me, although on further checks (after our phone call), it was received by the [redacted] mailbox. However, as we have recently moved offices and reset my email software, the emails from [redacted] was not properly directed to my email inbox until 1 September 2023 thereby causing me not to have received any emails to [redacted] between 31 August 2023 to 1 September 2023 to my work email [redacted]. I have informed the client about the hearing but due to the fact that the hearing is scheduled for 15 September 2023, the client is currently offshore and does not have enough notice to be able to arrange to travel to Australia. I acknowledge that this was within our IT systems purview, however I sincerely request that the AAT consider the situation.
The Tribunal agreed to adjourn the hearing until 26 September 2023. The hearing proceeded, with the assistance of an interpreter. The Applicant advised the Tribunal at the conclusion of the hearing that she understood the interpretation, and the Tribunal’s questions. The representative attended the hearing and made submissions.
During the hearing, questions arose on the Applicant’s bank account statements in relation to several large transactions; namely where monies had been transferred to and from, as the account statements did not provide those details. The Applicant sought additional time following the hearing to provide evidence in relation to this issue, which it said could require some time for the bank to provide. The Tribunal provided a period until 10 October 2023 to provide post hearing submissions.
On 10 October 2023, the Applicant’s representative requested additional time to provide evidence, for the reason that, “CBA has just compiled the information required”. The Tribunal allowed an additional 7-days, and the Applicant ultimately submitted the post hearing evidence on 18 October 2023.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor stream which include the criteria in Subdivisions 188.21 and 188.25 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets cl 188.252.
Complying significant investment and genuine intention to hold – cl 188.252
Clause 188.252(1) requires that the applicant has made, on or after the time of application, a complying significant investment (within the meaning of reg 5.19C as in force at the time of application) of at least AUD 5 000 000. Clause 188.252(2) applies if the time of invitation to apply for the visa was before 1 July 2021, and requires that the applicant has a genuine intention to hold the complying significant investment for at least 4 years. Clause 188.252(3) applies if the time of invitation to apply for the visa was on or after 1 July 2021, and requires that the applicant has a genuine intention to hold the complying significant investment for the whole of the visa period. In this case, cl 188.252(2) applies.
Complying significant investment
‘Complying significant investment’ is defined in reg 5.19C, which sets out several requirements for an investment by a person to be a complying significant investment. These requirements relate to the investment as well as the investor. If an investment is based on one or more other investments, the overall investment and each investment on which it is based must meet the requirements of reg 5.19C.
The requirements relating to the investment are:
·All funds used to make the investment must be unencumbered and lawfully acquired: reg 5.19C(3).
·The investment must be lawful and must not form the basis for security or collateral of a loan: reg 5.19C(4).
·The investment, and the means by which the investment is made must be of a kind permitted by the requirements specified in an instrument under reg 5.19(6); and must comply with any requirements specified in an instrument under reg 5.19(6): reg 5.19C(5).
Regulation 5.19C(7) states that reg 5.19(8) applies in relation to a period (the switching period): (a) beginning when the investor withdraws funds from the investment, or cancels the investment; and (b) ending when the investor reinvests the withdrawn funds, or the funds used to make the cancelled investment. Regulation 5.19(8) states that if the switching period is of no more than 30 days duration, the investment is taken not to have ceased to be a complying significant investment during the switching period only because of the event mentioned in reg 5.19C(7)(a).
The requirements relating to the investor are:
·The investor must be an individual: reg 5.19C(9).
·The investor must make the investment:
opersonally; or
owith the investor’s spouse or de facto partner; or
oby means of a company that has issued shares and in which the investor holds all of the issued shares; or the investor and the investor’s spouse hold all of the issued shares; or
oby means of a trust to which the following applies: the trust is lawfully established; the investor is the sole trustee or the investor and the investor’s spouse or de facto partner are the sole trustees; the investor is the sole beneficiary or the investor or the investor’s spouse or de facto partner are the sole beneficiaries: reg 5.19C(10).
Non-disclosure certificate
As a preliminary matter, the Tribunal notes it has before it the Applicant’s Departmental file relating to the application for the Subclass 188 visa in the Significant Investor Stream. The delegate has placed restrictions on some of the material contained on the Departmental file given to the Tribunal by the Department by issuing a certificate under s 375A of the Act, dated 22 May 2023. It states that disclosure of some of the information within the Department’s cancellation file would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. A copy of the Certificate was provided to the Applicant and her representative.
Where a Certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. However, the Federal Court has held that a valid s 375A certificate does not override the Tribunal’s obligation to provide particulars of information under s 359A(1). Therefore, while the material subject to a s 375A certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its s 359A obligation.
In this case the Tribunal has had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties. Weighing that up against the requirements of procedural fairness set out in s 359A, the Tribunal orally advised the Applicant that the material related to the Department’s concerns that the funds she used to make the investment had not been lawfully acquired, and that there were serious questions about the legitimacy of the Applicant’s claim to have acquired such funds through the buying and selling of property.
Thereafter, the Tribunal sent a s 359A letter inviting comment on potentially adverse information, some of which was covered by the Certificate. On 30 August 2023, the Tribunal sent an “Invitation to Comment on or Respond to or Provide Information” to the Applicants, seeking comment on the following:
The particulars of the information are:
The Tribunal considers that the s375A Certificate material is relevant to a
consideration about whether all funds used to make any complying significant
investment are unencumbered and lawfully acquired. The Tribunal discloses to the
Applicant that the s375A material relates to concerns about the Applicant's source of funds and lawfulness of the Applicant's source of funds.
This information is relevant to the review because it tends to suggest that the Applicant’s source funds may not have been acquired lawfully.
If we rely on this information in making our decision, we may conclude that the funds
that will be used to make the investment are not unencumbered and lawfully acquired as per reg 5.19C(3) Migration Regulations 1994.

Following the Tribunal’s oral advice to the Applicant of the gist of the Certificated material, on 29 August 2023, the Applicant provided the Tribunal with a translated copy of a Bail Order that had been issued to the Applicant, by the Kampong Speu Provincial Court of First Instance, in relation to a criminal case that had been brought against the Applicant on 5 August 2010.
The material before the Tribunal indicates that the criminal charges arose out of a land clearing dispute. The Kampong Speu Provincial Court ultimately made a finding that:
BOU SREY, female, 40 years old, Cambodian national, is not guilty of clearing forestland and enclosing it to claim for ownership conducted in Sampov Village, Sangkat Chbar Mon, Chbar Mon Town, Kampong Speu Province, on 03 August 2010, the offense stated and punishable in accordance with Article 97 of the Forestry Law.
The material indicates that the Applicant’s period of “judicial supervision” also came to an end following the decision that she was not guilty of the land clearing charges.
The Tribunal observes that the Applicant’s occupation is recorded as “selling groceries” at the time of the “not guilty” decision on 17 December 2021. Save for this observation, which is relevant to the Applicant’s work history prior to her allegedly developing wealth through buying and selling property, the Applicant’s 5 August 2010 criminal charges are not relevant to the issues before the Tribunal and have not been considered. The Tribunal accepts the fact of the not guilty finding and draws no adverse inference on the basis of the Applicant having been charged in relation to her credibility.
In submissions dated 28 August 2023, the Applicant’s representative submitted the following:
Whether the Applicant has made a complying significant investment of at least
AUD$5,000,000
The Applicants have evidence of funds totalling more than AUD$5,000,000 which will be used to make the complying significant investment of AUD$5,000,000.
As of 26 July 2023, the account balance for Canadia Bank, Account number [redacted] belonging to the main applicant, Srey Bo, is USD $3,500,134.43. Please find attached the account balance confirmation from Canadia Bank dated 26 July 2023 (Annexure 2). A separate letter also confirms the main applicant’s bank balance in the same account as USD $2,311,539.46 in 14 March 2023 (Annexure 3).
The Review Applicant instructs that the account balance as of 28 August 2023 remains more or less the same. The account balance is equivalent to AUD $ 5,442,597 based on an exchange rate of USD $0.6431 = AUD $1.00.
The main applicant, Srey Bo, proposes to use this asset to make the complying significant investments. The Applicants confirmed that they are able to satisfy Clause 188.252(1) of the Migration Regulations 1994 (Cth).
The main applicant has made significant and genuine efforts to invest AUD$5,000,000 in complying significant investments. They have discussed their investment strategy with a private wealth fund manager Ord Minnett, which is registered by the Australian Securities and Investments Commission (“ASIC”). Please find attached Ord Minnett’s current financial services representative licence information registered with ASIC (Annexure 4).
As AUD$5,000,000 is a significant sum to invest, the main applicant has had to perform her due diligence and the main applicant has discussed their investment strategy and investment allocation with Ord Minnett since July 2023.
Ord Minnett issued the Investment Strategy Offer on 22 August 2023. Please find attached the Investment Strategy document (Annexure 5).
After going through the identity and client verification process, the SIV investment account was finally opened on 25 August 2023. Please find attached the portfolio summary as at 25 August 2023 (Annexure 6).
The standard process before an investment in complying significant investments are made, is the Department of Home Affairs will issue a letter inviting the applicant to make a complying significant investment. In the main applicant’s situation, as the invitation to invest letter has not been issued, the main applicant confirms that there are certain time delays in transferring the funds from Cambodia.
In addition, once the funds are received by Ord Minnett, it will take up to 8 business days to transact and settle and another 8 days for the respective funds to issue the Form 1413D Declaration in Relation to Complying Significant Investments. Please see attached email from Ord Minnett dated 28 August 2023 (Annexure 7).
The Tribunal accepts that the process for making a Complying Significant Investment is as described by the representative, and further accepts that the Applicant has opened an investment account with Ord Minnett. Further, the Tribunal accepts the representative’s submission that there is a significant cost (1% of the total investment - $50,000.00) associated with establishing the complying significant investment, and that the Applicant is waiting to transfer the funds to Ord Minnett if the Tribunal makes a decision that the funds used to make the investment are lawfully acquired and meet the requirements of reg 5.19C.
Are the funds used to make the investment unencumbered and lawfully acquired?
The Tribunal’s concerns are squarely focussed on whether the funds that will be used to make the investment are unencumbered and lawfully acquired.
In relation to this issue, the representative submitted the following:
The main applicant confirms that all the funds in her Canadia Bank Account number [redacted] are unencumbered and lawfully acquired.
The main applicant’s significant wealth is due to the capital gains from land deals (buying and selling) in Cambodia.
On 10 January 2020, the Department sent correspondence to the Applicant, explaining its concerns about the material before it:
From the information provided in this application, your education and business background consist of primary schooling and working in a fish market for many years. You currently operate a small grocery store and a property investment business.
You provided bank statements that show large and frequent deposits, including large
cash deposits, and withdrawals, often with multiple transactions on the same day.
Some transactions total millions of dollars, while others appear to be structured cash deposits of just under AUD 10,000 across various Commonwealth Bank branches in Australia.
You provided a written statement in which you refer to yourself as a “middleman” between purchasers and vendors for land sales. You claim to have business dealings with high profile Cambodians in your property development business. For example, you claim that you received a project to buy land for Oknha Pong Sovann to purchase land for USD 34 million to build a new airport in Cambodia. Oknha Pong Sovann is the representative of Eco Megapolis Development Corporation Co Ltd and the owner of Canadia Bank Plc.
Having given regard to all the information provided by you, I find it implausible that high profile Cambodian business people are using you as a “middleman” in their financial and property dealings worth tens of millions of dollars, given your limited education and business background. Of concern are also a number of structured cash deposits into you Commonwealth Bank account in Australia. As a result, I am not satisfied that all funds used to make the complying significant investment are unencumbered and lawfully acquired.
According to the source of funds information provided to me for this application, it appears that the requirements of regulation 5.19C(3) will not be met. Therefore I will not be issuing you with an invitation letter to make a ‘complying significant investment’ in Australia.
The Applicant, during the course of processing by the Department, provided a Statutory Declaration dated 7 February 2020, setting out her position. The Applicant explained the following to the Department, in response to the Department’s queries about her claims to be a wealthy property investor:
I left school in 1981. At this time Cambodia was only a couple of years out of the Democratic Kampuchea regime (Khmer Rouge), under which I grew up, and was under the occupation and control of Vietnam. There were no universities in Cambodia at that time. All of the people Vietnam wished to educate were sent overseas. For example, Mr Kong Srim, who sits on the Supreme Court of the Extraordinary Chambers in the Courts of Cambodia, has a Bachelor of Law from Ho Chi Minh University, Vietnam. Dr Sin Rith received his PhD from Kazakhstan National University, where he carried out all ten years of his studies. Samdech Techo Hun Sen, Prime Minister of the Royal Government of Cambodia, became Minister for Foreign Affairs in 1979 and then Prime Minister in 1984 without completing high school. In fact, he did not complete tertiary studies until 1991 when he was awarded a PhD in Political Science by the National Political Academy in Hanoi, Vietnam.
Steve Jobs never finished college, but he was worth $7 billion USD when he died.
As for my real estate dealings with Okhna Pong Sovann I supplied evidence in the form of contracts bearing the thumbprint of Okhna Pong Sovann. It is customary in Cambodia to thumbprint contracts rather than sign them as historically literacy rates were low. Much business in Cambodia is done through networking. Wealthy men such as Okhna Pong Sovann, Okhna Ly Hong and Okhna Khun Sea usually conduct their acquisitions through intermediaries when they wish to avoid paying a premium for basic items. In the case of land, the way, of purchasing is different to Australia. Friends and my daughter have told me that in Australia you look at properties that have already been advertised by real estate companies, inspect them, make your decision and then all business is done through the real estate agent. For very large developments the land is rezoned by the government, or farmland is purchased. Farms in Australia are very large, in Cambodia farms are very small. One development might need the land of a dozen farmers, or even 100. In these cases, if Okhna Pong Sovann were to travel around Kandal Stung district himself attempting to purchase people's farmland they would see his car, understand who he is and how rich he is and put a very high premium on the price of their land, causing him to have to pay two or three times the real price. If he used an employee that employee would have to disclose their status. If he uses a third party to conduct the acquisition he can save half the purchase price. This is a common practice in Cambodia.
As detailed in the resume I included with my application, I began doing this kind of work in 2004. In 2000 I studied land brokerage and in 2001 began making personal investments in real estate. I began buying and selling land as a means of earning the money to build my own house, which I did in 2003.Neighbours saw the construction and discussed it with me, learning of my real estate dealings. Word of mouth spread amongst a group of people in Phnom Penh who have Since used my services extensively.
The case officer called into question the source of my funds and highlighted "structured cash deposits of just under AUD 10,000 across various Commonwealth Bank branches in Australia". I supplied my CBA account details for the purposes of transparency. In relation to the deposits in question, they were not made directly by myself as I was in Phnom Penh at the time. My daughters Sreydeth YORS and Sreyneang YORS both attend school in Australia on student visas. I also sponsor several family members resident in Australia. For this purpose I needed to transfer money to Australia and as I had little time I engaged the services an informal money transfer service on October 31, 2018. Such a practice is common not only in Cambodia, but throughout Asia. Formal money transfer options such as Wing are relatively recent arrivals in Cambodia and we often fall back on trusted traditional methods. The deposits were made on October 31 and November 1 by the Melbourne-based representative of the service and I assume were done in such a way by them according to their ideas of security. In Cambodia it is not uncommon for people withdrawing or depositing large amounts of money to do so in a series of smaller transactions as they believe doing so in a single transaction will bring unwanted attention from the criminal element. At other times I have made direct bank-to-bank transfers of considerably more money than this, such as when we purchased a property in Springwood, Queensland.
Currently I hold around 2,000,000 AUD in my bank accounts in Australia and I will transfer the remaining 3,000,000 AUD from Cambodia following the sale of personal property. I hope that I have been able to clear up some of the misconceptions that have been made about myself and my business activities. If these misconceptions were as a result of me failing to explain clearly in my original application, I hope I have rectified that situation. My daughters' education in Australia is only the beginning of my family's commitment to the nation and I hope to have a long relationship with Australia.
Although the Tribunal offered the Applicant an extensive opportunity to explain her business model, and how her business eventuated, the Applicant provided very limited information at hearing. The Applicant’s submission is essentially that Cambodia continues to rely upon unsophisticated business methods, and therefore the Tribunal should accept that the voluminous copies of contracts and land sale agreements establish that the Applicant is running a word-of-mouth business capable of generating millions of dollars’ worth of revenue.
The Tribunal was careful to ensure that the Applicant understood the interpretation, dismissing and engaging new interpreters as needed. The Applicant has provided the Tribunal with material, but has not connected that material to the accounts provided, has not explained in meaningful detail what her business model is, has not provided any corroborating evidence from customers or business associates, and there is no objective third-party evidence available to the Tribunal that might indicate she is, in fact, running a business as claimed. For example, an internet presence, a registered business with an office, testimonials from customers, or accounting information that was capable of tracing the proceeds from sales through banking records. The Tribunal is left with a glut of contracts that it cannot be sure represent the transactions as claimed, and where the Applicant’s evidence is scant and lacking in detail; coupled with an implausible story of the Applicant’s rise from the fish market to major property developer with millions of dollars of assets.
The Tribunal accepts that there are very many people in the world who have humble beginnings, and through sheer determination, perhaps luck, and talent, do manage to build empires. The Tribunal was willing to listen to the Applicant’s evidence, with an open mind, and form a view that she has enjoyed this sort of success. However, the Applicant has not explained the connection between the contracts, and deposits into her bank accounts, and has not been able to articulate her business model in a way that has given the Tribunal confidence that she (1) has a business model; and (2) that the model is one that would support a finding by the Tribunal that her funds have been lawfully acquired.
In addition to the very significant concerns the Tribunal has in relation to the Applicant’s claims to be running a legitimate property business, there remain real concerns over the bank account records that the Applicant has provided to the Tribunal.
The Applicant has provided to the Tribunal a copy of several Commonwealth Bank Statements, including the following:
·Commonwealth Bank of Australia Smart Access Statement, 1 Jan 2018 – 30 Jun 2018;
·Commonwealth Bank of Australia Smart Access Statement, 1 Jul 2018 – 31 Dec 2018;
·Commonwealth Bank of Australia Payment Journal; and
·Commonwealth Bank of Australia withdrawal vouchers.
The Tribunal raised concerns with the Applicant and her representative that these statements revealed the very pattern of banking that led to the Department’s concerns about the account information that had been provided to it, and whether the funds that would be used to source the complying significant investment had been lawfully acquired. The accounts reveal a pattern of large deposits, mostly from the Applicant and “Chy Pheng,” the Applicant’s then husband. There are also large cash deposits; for example $600,000.00 on 13 March 2018, with the only notation being “Cash Dep Branch Springwood”. The Tribunal does not have any information explaining how the funds transferred in were acquired.
The Applicant’s representative submitted that that notation “Wdl Branch” on the CBA Account records did not necessarily mean that the Applicant left the bank with frequent and large (hundreds of thousands of dollars) cash. Rather, it meant that the transaction was conducted over the counter and that the Applicant arranged for that cash to be transferred to other accounts. The Tribunal accepted that this was possible, and provided the Applicant the opportunity following the hearing to obtain further details from the CBA.
At the hearing, the Applicant gave evidence that she was using the funds that had been withdrawn to acquire property in Australia. The Tribunal then warned the Applicant in relation to self-incrimination, before asking her whether she had obtained approval from the Australian Foreign Investment Review Board to acquire Australian property as a Cambodian national.
The Applicant chose to respond, and explained that she had acquired several properties for herself and children by buying them in the names of Australian citizens. Whether (or not) the Applicant is circumventing Foreign Investment Review Board approval is not a matter that the Tribunal must make a decision in relation to. The Tribunal observes that the Applicant has moved large amounts of money out of Cambodia, and that those funds have been used to purchase property that is not owned by the Applicant.
The Applicant provided information following the hearing, after consulting with the Commonwealth Bank, about the account destinations that the large sums of money had been transferred to, where the notation “Wdl Branch” appeared. The representative has provided the following summary of the information obtained from the CBA:
Commonwealth Bank of Australia has provided details in relation to a selection of withdrawals made by the Review Applicant on Account Number [redacted]. Please refer to the attached document by the Commonwealth Bank of Australia (Annexure 1).
The information provided refers to the transactions as per the Commonwealth Bank of Australia bank statements attached (also in the AAT’s records as part of the Department of Home Affairs file) (Annexure 2).
Extrapolating the information from both Annexure 1 and 2 shows that:
1. On 6 March 2018, a withdrawal of $62,000 was made at the Westfield Mount Gravatt Branch and funds were credited to the CBA Account in the name of Cheth Yos and Sem Mey (who are the Review Applicant’s son and daughter in law respectively).
2. On 6 March 2018, a withdrawal of $20,000 was made at the Westfield Mount Gravatt Branch and funds were credited to the CBA Account in the name of Cheth Yos (who is the Review Applicant’s son).
3. On 8 March 2018, a withdrawal of $200,000 was made at the Westfield Mount
Gravatt Branch and funds were credited to the Account of “Campbell John Staines
and Philip Ralph Swift TA Campbell J Staines & Mellifont Law Practice Trust
Account – Beenleigh” – which the Review Applicant advises was towards the
purchase of a property.
4. On 13 March 2018, a withdrawal of $321,000 was made at the Springwood Branch
and funds were credited to the CBA Account in the name of “Campbell John Staines
and Philip Ralph Swift TA Campbell J Staines & Mellifont Law Practice Trust
Account – Beenleigh” – which the Review Applicant advises was towards the
purchase of a property.
5. On 26 March 2018, a withdrawal of $130,000 was made at the Westfield Mount Gravatt Branch and funds were credited to the CBA Account in the name of Cheth Yos (who is the Review Applicant’s son).
6. On 1 May 2018, a withdrawal of $120,000.00 was made at Runaway Bay Branch and funds were credited to the CBA Account in the name of Cheth Yos and Sem Mey
(who are the Review Applicant’s son and daughter in law respectively).
7. On 14 May 2018, a withdrawal of $161,775.00 was made at Westfield Mount Gravatt Branch and funds were credited to the CBA Account in the name of Cheth Yos and Sem Mey (who are the Review Applicant’s son and daughter in law respectively).
8. On 27 September 2018, a withdrawal of $500,030.00 was credited to the WBC
Account of “Ebenezer Legal Law Prac Trust Ac Logan Road Upper Mt Gravatt
Australia” – which the Review Applicant advises was towards the purchase of a
property.
9. On 27 September 2018, a withdrawal of $50,030.00 was credited to the WBC
Account of “Ebenezer Legal Law Prac Trust Ac Logan Road Upper Mt Gravatt
Australia” – which the Review Applicant advises was towards the purchase of a
property.
10. On 17 November 2018, a withdrawal of $115,015.00 which was credited to “Ray
White Sunnybank Hills” – which the Review Applicant advises was towards the
purchase of a property.

The CBA was not able to verify all of the “Wdl ATM” transactions, as some of the records from 2018 could no longer be located. The Tribunal accepts that the CBA transfers referenced in the representative’s submissions were made as claimed, to acquire property. The Tribunal does not have information before it that establishes the manner in which the funds used to acquire the property were sourced. As such, the Tribunal cannot surmise that the funds were acquired through the Applicant’s property business. If the Tribunal was able to draw this conclusion, it would lend support to the Applicant’s overall claim to have lawfully sourced the funds that she seeks to use for the complying significant investment.
The Tribunal is left, overall, with a very disjointed and incomplete picture about the manner in which the Applicant’s purported property business operates, and the way in which her wealth has been acquired. There is simply not a plausible trail of verifiable evidence before the Tribunal establishing that the Applicant has acquired funds through a property investment business.
The Tribunal has carefully considered the Applicant’s oral evidence, legal submissions, and information available to it in documentary form. The Applicant has not satisfied the Tribunal that the funds that would be utilised to fund the complying significant investment have been lawfully acquired.
The Tribunal is therefore not satisfied that the funds nominated by the Applicant meet the requirements of cl 188.252(1) and reg 5.19C for a complying significant investment.
Given the findings above, the Tribunal is not satisfied that cl 188.252(1) is met and the Applicant therefore does not meet the requirements of cl 188.252.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are not met. Accordingly, the decision under review must be affirmed.
Based on its findings regarding the Applicant, the Tribunal is not satisfied that the second and third named Applicants meet the secondary requirements for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
DECISION
The Tribunal affirms the decisions not to grant the visa Applicants Business Skills (Provisional) (Class EB) visas.

[2024] AATA 208

1 February 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

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