Ding v Minister for Immigration

[2019] FCCA 160

FEDERAL CIRCUIT COURT OF AUSTRALIA

DING & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 160

Catchwords:
MIGRATION – Application for extension of time – Business Skills – Business Talent (subclass 132) visa – whether the Delegate failed to understand the proper test – whether the Delegate failed to understand a submission – whether the Delegate failed to consider information – whether the Delegate was legally unreasonable – no error by the Delegate – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.54, 55, 477(2)

Migration Regulations 1994 (Cth) cls.132.223, 132.224, 132.225, 132.226

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

First Applicant: CHUNSONG DING

Second Applicant: ZIHUA DING

Third Applicant: JIAJUN DING

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 2105 of 2016

Judgment of: Judge McNab

Hearing date: 10 December 2018

Date of Last Submission: 10 December 2018

Delivered at: Melbourne

Delivered on: 1 February 2019

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Clothier Anderson

Counsel for the Respondents: Mr J Forsaith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application to extend the time for the filing of the application filed 28 September 2016 and amended 28 June 2017 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $7, 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2105 of 2016

CHUNSONG DING

Applicant

ZIHUA DING

Applicant

JIAJUN DING

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant (‘Applicant’) seeks judicial review of a decision of a Delegate of the Respondent (‘Delegate’) refusing him a grant of a Business Skills – Business Talent (subclass 132) visa (‘Visa’). The originating application was filed on 28 September 2016 and amended on 28 June 2017. The Second and Third Applicants are members of the Applicant’s family unit.

2. The parties agree that as the decision of the Delegate was not subject to merits review by the Tribunal, it is therefore not a primary decision and that this court has jurisdiction to grant the relief sought.

3. The Delegate’s decision was made on 23 August 2016 and the application for judicial review was not filed until 29 September 2016. The application is filed two days out of time in the court must be satisfied pursuant to s 477(2) of the Migration Act 1958 (Cth) (‘Act’) that it is necessary in the interests of the administration of justice to make an order extending the period of time for the filing of the application.

Background

1. On 14 November 2014, the Applicant was invited to apply for the Visa.

2. On 5 December 2014, the Applicant sought the grant of the Visa by attempting to satisfy the significant business history stream criteria under cl 132.226 of Sch 2 of the Migration Regulations 1994 (‘Regulations’). These criteria include:

   a)having “overall had a successful business career”: cl 132.223;

   b)net value of assets in qualifying businesses being at least $400,000 in “at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa”: cl 132.224;

   c)annual turnover for the Applicant's main businesses being at least $3m in “at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa”: cl 132.225; and

   d)the business and personal assets of the Applicant and/or his spouse or de facto partner having a net value of at least $1.5m at the time of decision, being lawfully acquired and being available for transfer within 2 years: cl 132.226 (the net assets criteria).

3. The Applicant submitted that he had an 86.67% share in Shandong Dadi Petrochemical Group Co (‘the Group’) and a 60% share of Shandong Land Dairy Co[1] with the net assets of those businesses being as follows:

   a)The net assets (total assets minus total liability) of the Group owned by the Applicant was said to be $107,772,956 in 2013 and $162,236,670 in 2012;[2]

   b)The net assets (total assets minus total liability) of the Dairy Co owned by the Applicant was said to be $25,482,998 in 2013 and $13,086,692 in 2012;[3] and

   c)The net business assets of the Applicant were said to be $133,255,954 at the time of the application.[4]

   [1] Court Book 24 – 25.

   [2] Ibid 25.

   [3] Ibid 26.

   [4] Ibid 27.

4. On 22 April 2015, the Delegate wrote to the Applicant to request further information regarding his assets.[5] The Delegate stated in this correspondence that:

   You are ... required to provide a statement on source of funds detailing the accumulation of your personal wealth supported by, including but not limited to, historical bank records showing accumulation of wealth or existence of personal wealth; bank/tax records to substantiate remuneration (salary/bonus/dividend) income you claimed to have received from the nominated business and/or other businesses.[6]

   [5] Ibid 32.

   [6] Ibid 33.

5. On 19 May 2015 the Applicants agent sought more time to respond, because the accountants are still finalising their financial report". This was granted.[7] By letter dated 11 June 2015, the Applicant’s agent made submissions and provided documentation to the Delegate via email.[8] This correspondence contained the following assertions:

   a)the Group was a holding company for four businesses, including Dongying Guanbei Carbon Black Co Ltd (‘Carbon Black Co’). The Applicant claimed to have a 85.4% share in Carbon Black Co;[9] and

   b)that the Applicant had assets of $7,947,747, constituted of:

   i)His share in Carbon Black Co, worth $5,085,547;

   ii)A farm in Australia worth $4,462,000 with a mortgage of $2,040,000 (‘the farm’); and

   iii)A house in Australia worth $440,000 (‘the house’).[10]

   [7] Ibid 311.

   [8] Ibid 316

   [9] Ibid 38; 112.

   [10] Ibid 37.

6. On 26 June 2015, the Delegate wrote to the Applicant to request further information regarding his assets. The Delegate stated that the Applicant had not provided sufficient evidence in respect of satisfying certain criteria.[11] The letter provided detailed reasons for reaching that view. By way of example the Delegate asked for evidence in relation to the Applicant’s claims that he had been studying at the University of Queensland from February 2008 to December 2012.[12] It is noted that the Applicant had claimed in his correspondence of 5 December 2016 that he had obtained a bachelor’s degree in engineering from the University of Queensland in 2014.

   [11] Ibid 387 – 388.

   [12] Ibid 389.

7. On 23 July 2015, the Applicant’ agent made further submissions and provided more documentation.[13] The agent’s letter of 23 July 2015 reveals that he had not completed his degree.

   [13] Ibid 390.

8. On 28 August 2015, the Applicant’s agent provided further documentation.[14]

   [14] Ibid 503.

9. On 5 April 2016, the Delegate invited the Applicant to comment on adverse information regarding involvement in a money borrowing dispute that may have involved himself, his wife and the Group.[15] The Delegate stated wrote that the dispute ‘casts doubts on the claimed net business and personal assets positions’.[16] The Delegate invited the Applicant to ‘comment on the above information and provide evidence capable of independent verification, including but not limited to court decision, opinion of lawyers and evidence of settlement…’[17]

   [15] Ibid 550.

   [16] Ibid.

   [17] Ibid 551.

10. On 11 April 2016, the Applicant’s agent replied to this invitation by email, attaching a lawyer’s statement which provided that:

    a)The Group has guaranteed a loan of 20 million RMB for the Shandong Haolong Rubber Tyre Co Ltd (‘Haolong Rubber’). This loan had been repaid by the Group as at 9 April 2015.

    b)Haolong Rubber was declared insolvent in October 2015.

    c)On 26 August 2014, the Group borrowed 30 million RMB from the China Everbright Bank Co Ltd. The Group failed to repay the loan principal and interest and the bank obtained a judgment from the Intermediate People’s Court of Jinan City, Shandong Province in respect of the debt (‘the Judgment debt’) which was “now in the enforcement process”. The lawyer’s statement provided that the judgment creditor could proceed against the guarantors for enforcement of the debt.

11. On 18 April 2016, the Applicant’s agent corresponded with the Delegate via email, attaching:

    a)a statement from the Chef Financial Officer of the Group, which referred to an agreement having been reached for ‘an exchange of mortgage with China Construction Bank Dongying Branch’ in respect of land owned by the Group, mortgaged to the bank;[18] and

    b)supporting documentation referring to the Applicant’s assets present in Australia, which were said to be unaffected by ‘any commercial matters in China’.[19]

    [18] Ibid 571.

    [19] Ibid 568.

12. The correspondence of 18 April 2016 also included a statement that the Applicant is “unable to settle the matter with the bank within the timeframe please refer to the company accountant submission”[20]

    [20] Ibid.

13. On 20 April 2016, the Delegate wrote to the Applicant to request further information regarding his assets, noting that the material provided was not sufficient to support his claims.[21] The Applicant was also put on notice by this correspondence that a decision may be made regarding his application upon the receipt of further supporting material.[22]

    [21] Ibid 581.

    [22] Ibid 583.

14. On 17 May 2016, the Applicant’s agent replied, attaching further information regarding the farm and house assets. In relation to the dispute with the China Everbright Bank, the agent stated:

    [The Applicant] needs more time to organise a well (sic) settlement method to settle. However, [the Applicant] has already transferred his business and personal assets form (sic) China into his Australian businesses, and his business and personal assets in Australia is well over $2.5m, which ... meets the minimum amount money that Clause 132.226 required.

15. On 1 June 2016, the Delegate wrote to the Applicant, summarising the submissions made and stating that she was ‘unable to determine the extent of [the Applicant’s] liability of the loan and in turn, whether the nominated business and personal assets are unencumbered cannot be determined based on the evidence submitted’.[23] The Delegate invited the Applicant to respond and reiterated that a decision may be made upon the receipt of further information.[24]

    [23] Ibid 655, 656.

    [24] Ibid 655.

16. On 27 June 2016, the Applicant’s agent made a further submission by email.

Delegate’s decision

1. On 23 August 2016, the Delegate refused the Applicant a grant of the Visa as she was ‘not satisfied that clause 132.226…is satisfied’.[25] This is because the Judgment ‘cast considerable doubts on whether the nominated net business and personal assets of [the Applicant] and [the Second Applicant] are unencumbered’.[26] The Delegate did not accept the evidence from the Chief Financial Officer that the China Everbright Bank had agreed to accept the mortgage exchange for settlement of the loan; there was ‘no evidence capable of independent verification made available to substantiate the claims by the CFO’.[27] The Delegate’s decision stated to the Applicant that:

   You were advised that despite your attempt to demonstrate your capability of loan repayment, the fact remains that the aforesaid loan has not been settled and you and your spouse are held by the Court to be liable for repayment in your role as guarantors. I am therefore unable to make a finding that the assets you have nominated to meet clause 132.226 have a net value of at least AUD 1.5m and that they are available for transfer.[28]

   [25] Ibid 890.

   [26] Ibid.

   [27] Ibid 891.

   [28] Ibid.

2. The Delegate had regard to the submissions regarding the Applicant’s finances and concluded overall that:

   As at the time of this decision, you (the Applicant) have an unsettled loan held against you despite a court order being handed down over eight months ago for you to repay the loan. There is no evidence of the creditor having entered into an agreement with the parties concerned on the settlement of the loan. I remain concerned that the creditor may escalate its pursuit for the loan to be repaid, rendering your entire asset portfolio encumbered. While you have been given ample opportunities to submit further evidence, I remain unable to determine the extent of your liability of the loan and in turn, whether the nominated business and personal assets are unencumbered cannot be determined based on the evidence submitted.[29]

   [29] Ibid 892.

Grounds of review

1. The grounds of review, extracted from the amended application filed
   28 June 2017, are as follows:

   1. The Delegate failed to consider information contrary to s 54 of the Migration Act 1958 (Cth), or failed to consider a submission of substance.

   2.The Delegate failed to apply the correct test.

   3.The Delegate failed to consider information contrary to s 54 of the Migration Act 1958 (Cth).

   4.The Delegate engaged in reasoning, or made a finding of fact, or made a decision, that was illogical, irrational, legally unreasonable or that is otherwise affected by an undisclosed error.

   5.The Delegate failed to exercise the power under s 55 of the Migration Act 1958 (Cth) in circumstances that amount to legal unreasonableness.

   6.The Delegate failed to consider information contrary to s 54 of the Migration Act 1958 (Cth).

2. The application noted that the particulars of each of these grounds were to be found in the submissions of the Applicant. Grounds three and four were abandoned at the hearing.

Submissions of the Applicant

1. In relations to grounds one and two, the Applicant submits that the Delegate failed to evaluate the Applicant’s submission ‘expressly [linking] the “current civil court finding”, the debt to CEB and the Applicant’s guarantee’.[30] This alleged failure to consider information advanced in a submission by the Applicant is said to amount to jurisdictional error.[31] Similarly, the Applicant submits that the Delegate did not understand a submission tendered in response to a request for further information about the Judgment debt. The Applicant provided summary statement on a loan repayment by the Group on behalf of Haolong Rubber Tyre and other companies. The Delegate interpreted this evidence as a submission intended to demonstrate ‘that [the Applicant is] capable of repaying the loan and the nominated business and personal assets can be considered as unencumbered’[32], but found that this evidence did not address the request for more information on the Judgment debt and associated litigation.[33] The Applicant submits this is a misunderstanding of the substance of the submission, which was directed as demonstrating the Group’s ability to service debt easily and that the Applicant’s exposure was remote.[34] It is said that this also a failure to consider amounting to jurisdictional error.

   [30] Applicant’s submissions filed 26 June 2017 3 [14] – [15].

   [31] Ibid.

   [32] Court Book 892.

   [33] Ibid.

   [34] Applicant submissions filed 27 June 2017, 3 – 4 [16].

2. Ground five regards alleged legal unreasonableness in finding that no independent evidence of the progress on loan repayments had been made available to the Delegate. The Applicant submits that this unreasonableness stems from the failure to further enquire of the Applicant’s migration agent, who had engaged prior in ‘lengthy exchanges’. It is said that that ‘having regard to this history of fruitful engagement…the obvious likelihood that further communication with the agent would have clarified the Delegate’s concerns’ means that the failure to request more information, pursuant to s 55 of the Act, was unreasonable.

3. Ground six regards an alleged failure to consider a submission of substance made by the Applicant. The Applicant made a claim that he relied upon two properties in calculating his assets.[35] It is said that the Delegate did not refer to the claim in the statement of reasons and therefore it is to be inferred that the Delegate ignored the submission.[36]

Consideration

[35] Court Book 661.

[36] Applicant submission filed 27 June 2017, 6 [26].

Grounds one and two

1. Section 54 of the Act provides:

   (1)The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

   (2)For the purposes of subsection (1), information is in an application if the information is:

   (a)set out in the application; or

   (b)in a document attached to the application when it is made; or

   (c)given under section 55.

   (3)Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the Applicant an opportunity to make oral or written submissions

2. The Applicant submits that the Delegate ignored a submission made on 27 June 2016 by the Applicant’s agent that an arrangement had been put in place for repayment of the loan, including the provision of security, which meant that the Applicant’s guarantee would not be called upon.[37] That submission overstates the effect of the submission made by the Applicant on 27 June 2016 to the Delegate. There is no detail about what arrangements were made by the Applicant’s businesses to resolve the dispute and the effect of the submissions is that the bank held the titles of property the value of which was said to exceed the value of the amount owed to the China Everbright Bank. This is not evidence of arrangements being put in place for the repayment of the loan.

   [37] Applicant submissions filed 27 June 2017 [13].

3. The Delegate made findings regarding the material submitted in relation to the loan repayments as follows:

   On 01/06/2016, I wrote to you and advised that your submission on 17/05/2016 and 29/05/2016 did not provide new ground for further consideration in the litigation you had with China Everbright Bank and that I remained unable to determine the extent of your liability of the loan and in turn, whether the nominated business and personal assets are unencumbered cannot be determined based on the evidence submitted.

   On 06/07/2016, amongst other things, a letter from the Group dated 17/06/2016 was submitted. It was submitted that the Group had not repaid the loan of RMB 30m to China Everbright Bank. It was also submitted that a property of an affiliate of the Group, Dongying Land Silicon Co., Ltd. ("Dongying Silicon"), valued at no less than RMB 30m, is frozen by the Court. According to the title deed and property search record submitted, it was noted that a property of Dongying Silicon is frozen; however, I am unable to make a finding that the frozen property has any correlation with the loan repayment to China Everbright Bank. Also, there is no evidence capable of independent verification including written confirmation from China Everbright Bank or the Court about the progress of the loan repayment made available to substantiate the claims made.[38]

   [38] Ibid 891.

4. In my view, this passage demonstrates active consideration by the Delegate of the submissions made on behalf of the Applicant. The reasons set out by the Delegate[39] regarding submissions made on behalf of the Applicant directly address the question of whether the litigation that had been referred to by the Delegate had been resolved. The fact that the Applicant’s business was unable to settle a Judgment debt which had been in place for eight months was a matter noted by the Delegate and this provided a basis for a finding that it did not presently have funds available to settle the Judgment debt.

   [39] Court Book 891 – 892.

5. The second ground asserts that the Delegate misunderstood the notion of ‘net value’ when considering the Applicant’s financial position. The Applicant suggests that the Delegate was wrong to take into account unpaid liabilities that have been guaranteed by the Applicant and his wife as they were not present liabilities. In my view, there is no error in the Delegate taking into account the Applicant’s liability as a guarantor of an unpaid Judgment debt in considering the net asset value of the Applicant; this was not a case where a creditor had simply asserted a claim, rather a creditor had obtained a Judgment debt which was debt guaranteed by the Applicant. It was not suggested by the Applicant that the guarantee was unenforceable. As was submitted by the First Respondent, it was a matter for the Applicant to advance whatever evidence or argument he wished in support of his contentions, including his contention that his net assets were not encumbered by a Judgment debt, enforceable against him, at the creditor’s discretion, for 30 million RMB plus interest. The Applicant failed to satisfy the Delegate that there was any agreement between him and the creditor to the effect that the debt had been paid and the guarantee would not be called upon.

Ground five

1. The Applicant takes issue with the Delegate’s observation that ‘there is no evidence capable of independent verification including written confirmation from CED or the court about the progress of the loan repayment made available to substantiate the claims made’. The Applicant also takes issue with findings in relation to the assets and liabilities of Long & Yao, including ownership of a farm valued at AUD $4.9 million, cash of AUD $1.4 million and a loan from the Commonwealth Bank of AUD $1.66 million. It is said in relation to each of these matters that, given that there was history of communications between the Delegate and the agent, that the agent had provided further information and that any further request would yield the information required, and therefore it was legally unreasonable for the Delegate not to exercise the power under s 55 of the Act to request further information from the Applicant.

2. A proper analysis of the request for information by the Delegate and the provision of information by the agent for the Applicant shows that the agent in fact failed to provide any evidence to independently verify the progress of the dispute involving the China Everbright Bank. I accept the submission of the First Respondent that the Applicant’s submission to the Delegate of 18 April 2016, the Applicant referred to a “consensus” having been reached on a mortgage swap but, as noted by the Delegate, this claim was not supported by any evidence capable of independent verification. In subsequent submissions the Applicant made assertions in relation to the value of a property that had been frozen by the bank and two other properties but did not provide any independent evidence of the valuation of those properties such that the claims could be independently verified.

3. In the course of oral submissions it was also suggested that because the agent had not made an application for a visa of this kind before then that was all the more reason for the Delegate to make a further request. The course of the correspondence between the Delegate and the agent shows that the exchanges between them was not one from the Delegate’s point of view of ‘fruitful engagement’. The Applicant’s agent was given notice in writing before the provision of the fifth and sixth submissions that the Delegate may determine the application upon the receipt of any further submission. It was not legally unreasonable for the Delegate to determine the application when she did and the lack of experience of the agent is not material to the matters to be determined by the Delegate.

Ground six

1. By this ground the Applicant submits that the Delegate overlooked submissions and documents concerning two properties said each to be worth RMB 18 million. The documents at pages 660 – 661 of the Court Book, which comprise the Applicant’s submissions in relation to these properties, indicate that they have been marked up by the decision-maker in those places where these properties are referred to. The submission of 27 June 2016 makes reference to two properties being valued ‘at least RMB 18 million each providing for total assets of RMB 36 million’. The evidence provided by the Applicant consisted of two title certificates showing the two banks had RMB 18 million interest in properties owned by entities other than the Group or its subsidiary Carbon Black Co. The documents provided did not establish that the Group or Carbon Black Co owned an unencumbered property to the value of RMB 36 million.[40] I accept the submission that the decision-maker is not required by law to recount in her reasons every submission made by the Applicant.[41] It is plain from reading the correspondence and reading of the decision that the Delegate did not accept unverified assertions made by the Applicant in relation to his financial position or that of the group of companies he was associated with. I also accept that the Delegate considered the Applicant’s submissions in relation to assets he claimed to have available to him, especially given the markings on the relevant parts of the submissions indicate that they were considered.

   [40] See Court Book 857 - 859, Certificate of Other Interests in Real Estate, dated 9 March 2015,

   [41] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 [46].

2. For these reasons, there is no error in the decision of the Delegate.

Application to extend time

1. The application was filed two days out of time and the Applicant requires an order for the time be extended for the filing of the application. The Applicant relies on an affidavit of Ms Catherine Jane Farrell of

   
   

   Clothier Anderson Immigration Lawyers in relation to the reasons for the delay in issuing proceedings.

2. In considering the application to extend the time for filing the application pursuant to s 477(2) of the Act, I have regard to the length of the delay, the reasons for the delay, the merits of the proposed proceeding and whether prejudice will be suffered by the respondent if the application was granted: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].

3. The affidavit recounts the instructions that solicitor had obtained from the Applicant in relation to the reasons for delay. The substance of the evidence is that the Applicant was relying upon the agent who had acted as his migration agent. Prior to engaging his current lawyers, the agent saw a barrister who advised him that he was not confident that he could win the case and the agent conveyed that to the Applicant.

4. The Applicant first sought legal advice from the solicitors now acting for him on 27 September 2016 and after seeking legal advice provided his solicitors with funds on 28 September 2016. The application was filed on 29 September 2016.

5. Whilst the material does demonstrate that the Applicant took some steps in relation to the application, given that he is presenting himself as a sophisticated and financially well-resourced person, in my view the explanation does not adequately explain the delay. Further the merits of the case are such that it is not necessary in the administration of justice to extend time. In my view the application has no prospects of success. No particular prejudice has been pointed to by the First Respondent, however that is not of itself a reason to extend time.

Conclusion

1. For these reasons there is no error in the manner in which the Delegate dealt with the application and the application for judicial review will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 1 February 2019

showing that the Guangrao County Branch of Agricultural Development Bank had an interest of 18,000 RMB secured against a property owned by Shandong Haolong Group Co., Ltd; Court Book 882 – 884, Certificate of Other Interests in Real Estate, dated 5 November 2012, showing that the Dongying Branch of Evergrowing Bank had an interest of 18,000 RMB secured against a property owned by Jianling Li, Zhauyou Gong.