Gao v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 649
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gao v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 649
File number(s): MLG 646 of 2023 Judgment of: JUDGE VASTA Date of judgment: 4 July 2023 Catchwords: MIGRATION – Visa application overseas – no right to merits review – translations of documents – whether delegate engaged with claims of the applicant – whether finding of the delegate open on the evidence – application dismissed Legislation: Migration Act 1958 (Cth): s 476
Migration Regulations 1994 (Cth): sch 2 cl 132.225
Cases cited: DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 4 July 2023 Date of hearing: 4 July 2023 Place: Brisbane Counsel for the Applicants: Mr Poynder Solicitor for the Applicants: FCG Legal Pty Ltd Counsel for the Respondent: Mr Barrington Solicitor for the Respondent: Sparke Helmore ORDERS
MLG 646 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAOJIE GAO
First Applicant
MINGCHEN ZOU
Second Applicant
KATE GAO
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
4 JULY 2023
THE COURT ORDERS THAT:
1.The application filed on 13 April 2023 as amended on 14 June 2023 be dismissed.
2.The Applicants to pay the Respondent’s costs of and incidental to the application fixed in the sum of $8,371.30.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 9 March 2023 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”) refused the visa application for a Business Skills - Business talent (Migrant) (Class EA) Business Talent subclass 132 visa, applied for by the applicant, Taojie Gao. Because Mr Gao was in China when he made this application, there was no right of merits review for this decision. Pursuant to s. 476 of the Migration Act 1958 (Cth) (“the Act”), this meant that this Court was vested with the jurisdiction to judicially review the decision of the delegate. On 13 April 2023, the applicant asked this Court to do so.
The background to the matter is that the applicant is a citizen of the People’s Republic of China (“China/PRC”). He completed high school in China in 2007. In November 2007, he and his mother set-up a company called Wei Hei Wen Deng Tian Yu Real Estate Limited. The company had the mother as the majority shareholder, with 60 per cent ownership, and the applicant had 40 per cent ownership.
The applicant said that he went to the United States after finishing high school, and completed a bachelor’s degree in New York, majoring in computer science and economics.
He then became interested in investing money to supplement his income, and he used a sum of $US500,000 that he borrowed from his parents in China, to become active in equity investment in the United States.
He claimed that he made enough to repay his parents, and had a tidy profit of $US600,000 which he retained for himself. The applicant said that, when he came back to China in 2013, he used those funds by investing in a nursery business that was owned by his parents. He participated in the sales of plantlets, which became very successful. The applicant said that he accumulated more capital because of that.
He then said that he borrowed a further, approximately, $US1.3 million from his parents. What he said he did with that money was that he invested it in the company. There is nothing to say as to what the terms of the investment were, how it was categorised, whether it was a shareholders loan, or whether it in any way changed the shareholding arrangement.
From the evidence before me, it did not change the shareholding arrangement, and the money was eventually repaid by the applicant to his parents. He claimed that the repayment was made possible from the money that he was making from the company.
The applicant applied for a visa to Australia, together with his wife and child. He applied under the Significant Business History stream, nominating the real estate company as his main business. He provided to the delegate an organisational chart, which identified him as the general manager of the company, answering to a board of four members.
To obtain the visa, the applicant had to satisfy a number of requirements. The relevant requirement here is the requirement in clause 132.225 in schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That clause provides that:
For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of at least $AUD3 000 000.
What needed to be established was that the applicant was the guiding mind, or at least one of the guiding minds, of the company, and, therefore, involved in the senior management of the company. This was meant to show that it was his management, or partly his management, that resulted in the company having the turnover of over $3 million.
The applicant nominated the financial years of 2017 and 2018 as being the two years that would show what it is that he had done. He submitted a business card depicting himself as the general manager of the company, the organisational chart of which I have spoken, two photos of himself in the workplace, and some internal documents, including internal guidelines and payment and recruitment approval forms bearing his signature.
The delegate sent the applicant a letter on 27 October 2022. That letter detailed that, based on existing information available on the management role played by the applicant, the delegate could not make a finding that he met clause 132.225.
The reasons given for this were, firstly, that whilst the applicant submitted that he was the general manager during the nominated years, the public information was that the applicant was the supervisor, and that his mother was the general manager, as well as being the legal representative and 60 per cent shareholder during those nominated years of 2017/2018. The delegate said in the letter that, “By virtue of PRC company laws, a Supervisor of the company cannot act in the role of senior management.”
Secondly, the delegate said that “there was a lack of public information connecting the applicant to his role in the company.” The delegate said that “internally generated documents submitted are not independently verifiable and as such are not to be accorded significant weight in the assessment.”
The delegate asked the applicant to provide the delegate with further documentation to support his application. The applicant was asked to do so within 28 days.
The delegate also gave the applicant this information: that open source information indicated that this company had about 80 court judgment records. The company was the defendant in the majority of the hearings.
The applicant was requested to provide comments. The applicant was also asked to provide evidence to demonstrate the source of his funding for his capital investment and his nominated assets.
The applicant replied with further documents on 23 November 2022. The documents submitted, in relation to his management role, included five letters of recommendation that were issued by persons who had been involved with the applicant’s company, through their own company, in projects. Those letters attested to the applicant’s position as the company’s general manager and the applicant’s involvement in the operation of the company.
There were also three purchase contracts that the applicant signed on behalf of the company for purchasing some building materials, such as wooden doors.
There were court judgments that were also submitted by the applicant in response to questions on the legal proceedings. The delegate noted that it was the mother of the applicant that was named as the general manager, and legal representative, of the company in all of those court judgments that were submitted by the applicant.
The delegate said that they had given regard to all information available and that they could not make a finding that the applicant had maintained direct and continuous involvement in management of the company from day to day and in making decisions affecting the overall direction and performance of the business during those nominated years of 2017 and 2018. The delegate said this at page 3 of the decision:
You were provided an opportunity to address the concern but you have not provided an explanation as to why you were officially registered as the Supervisor, instead of General Manager of the Company during the nominated years. As such, the doubt on your actual position /management role in the Company remains unaddressed.
The delegate further said:
I have considered the documents you submitted to demonstrate your management role. I note that the internal documents/ letters of recommendation are not independently verifiable and cannot be accorded significant weight. They are not sufficient evidence to override the concern on the conflicting information on your position in the Company.
The delegate then said:
Besides, the several copies of purchase contracts you signed on behalf of the Company already bore the Company seal which would have rendered them legally enforceable even without your signature. These purchase contracts are also not strong evidence to substantiate your declared role of a strategic corporate leader.
The delegate also said that there exists strong evidence, including public domain information and court judgments, which names the applicant’s mother as the general manager and legal representative of the company. The delegate noted that the mother was still the majority shareholder with 60 per cent ownership.
The delegate noted that the applicant had submitted that the capital investment into the company was funded by his parents, and, looking at all of that information, it was suggestive of the mother, instead of the applicant, being the person who was in the position of general manager, responsible for the top level of management.
The delegate said that the applicant did not satisfy the requirements of clause 132.225 of schedule 2 of the Regulations, and, therefore, the applicant did not meet those requirements for the issuing of the visa.
Because the applicant could not be given a visa, the other persons on his application, being his wife and daughter, could not be given a visa either.
The applicant filed an amended originating application on 14 June 2023. It had one ground. That ground was that:
The delegate erred when finding that the business nominated by the first applicant for the purposes of an application for a Business Skills – Business Talent (Migrant) (class EA) Business Talent (subclass 132) visa did not satisfy the definition of “main business” in regulation 1.11 of the Migration Regulations 1994 (the regulations), and that consequently, the first applicant did not satisfy the requirements of clause 132.225 of Schedule 2 to the regulations.
There were six particulars that were given.
I have been assisted greatly by submissions made by Mr Poynder on behalf of the applicant, as well as having had assistance from Mr Barrington, who has appeared today for the Minister.
The applicant first argued that the material, that was given to the delegate in answer to the delegate’s queries of October 2022, were in Chinese. They are reproduced in the Court Book. The applicant has had a NAATI-certified interpreter translate the documents, and has annexed that to an affidavit of Shirley Xinying Wong, filed on 14 June 2023.
The Minister objected to the use of these documents because they were not before the delegate. There is much force in the submissions of the Minister. That is because the applicant now seeks to rely upon the translation of the documents as being the translation that the delegate must have used.
It is obvious from the decision, and the fact that the delegate was based in Hong Kong, that the delegate is bilingual. The delegate did not need to have the documents, given by the applicant, translated for the delegate to be able to come to grips with what it is that the applicant was arguing. But as has been noted very recently by the High Court in DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177, there is no longer an ability for someone to say that there is only one true translation; that is, that any interpreter, doing their best, will not necessarily translate the document the same way as another interpreter.
The gist of what is being written will be translated, but that is the raison d’etre of interpreting. There can never be, as it were, a direct translation that is absolutely correct. The danger, then, of relying upon the translations in the affidavit of Ms Wong is that it may not be the actual “translation” that the delegate used.
Nevertheless, for the purposes of this proceeding, I have been prepared to rely upon those translations. There is still matters within those translations that are difficult to reconcile, but the Court has done its best. It is only by using those documents that one can understand the force of the submissions made by the applicant.
In a nutshell, the applicant claims that the delegate has not fully engaged with the force of the documents that were given in response to their query of October 2022, and that if the proper engagement had occurred, then it simply would not have been open for there to have been any other conclusion other than that the applicant had fulfilled the requirements of clause 132.225.
With regards to the five letters of recommendation, having looked at those, it would seem to me that the delegate has properly described them, when on page 3 of her decision, she described them as letters of recommendation issued by “the company’s business partners/counterparts attesting to your position as the company’s general manager and your involvement in the operation of the company”.
The applicant says that the delegate has seemingly dismissed the force of those recommendations because the letters of recommendation were not independently verifiable and could not be accorded significant weight. The applicant argues that there was a phone number on nearly every one of those letters of recommendation, and one of them even had a physical address.
The applicant argues that it was easy enough for the delegate to make some phone calls or physically go to one of the addresses of those persons to verify that information. To dismiss those documents for the reason given, shows that there had not been an engagement with the force of them.
With regard to the contracts, the delegate had said that the contracts were not strong evidence to substantiate the applicant’s declared role of a strategic corporate leader. However, the delegate had made a little “aside” by saying that:
Besides, the several copies of purchase contracts you signed on behalf of the Company already bore the Company seal which would have rendered them legally enforceable even without your signature.
That was a statement of contract law in the PRC for which there was no evidence or evidentiary basis given by the delegate and, in doing so, the delegate may also have breached procedural fairness to the applicant argued the applicant.
The applicant submits that the force of those documents show that the applicant was in such a position that he could bind the company by making the contracts. The applicant relies upon the translations, in the affidavit of Ms Wong, where, in the first contract, it names the legal representative as being the applicant who has then signed the document as well as an appendix as to how the payments would be made which is also signed by the applicant and sealed. The applicant submits that the contracts themselves talk about the contracts needing to be signed and sealed.
However, in one of the other contracts, there is a translation that says:
This contract is in duplicates, both with legal effectiveness, and becomes effective after signing (stamping) by the two parties, and also after Party B receiving the payment from Party A.
It would seem in that contract, signing and stamping were seen to be the same action. The applicant makes the point that what the applicant had to show was that he had direct and continuous involvement in the management of the business from day to day and that whether one called it a “supervisor” or whether one called it a “general manager” or whatever nomenclature was given, the evidence that the applicant gave to the delegate was sufficient to show that he had maintained the direct and continuous involvement in the management of the business.
The applicant submits that the delegate focused too much on the titles of the applicant and his mother and did not really consider what actual tasks were being carried out by the applicant and his mother. The applicant claimed that the delegate’s findings that:-
·a person designated as a supervisor has no management involvement in a company
·contracts which have the seal of the company are legally enforceable without the signature of a company officer
·the fact that a person is a majority shareholder of a company is evidence that such person is the manager of the company
all have no evidentiary basis. It would seem to me that the first two of those submissions were findings that were made by the delegate. The third of those contentions was not a finding that the delegate made.
The applicant also submitted that the delegate failed to consider those clauses in the contract that the delegate says provided that the contracts would only become effective after stamping and signing.
The applicant argued that the delegate erred in the finding that the five letters from business associates were not independently verifiable and the applicant argued that the delegate erroneously stated that the applicant said that his capital investment from the business had been funded by his parents.
I will need to address each of those matters in turn. I will go to the last point first and work backwards.
The delegate did state that the applicant had submitted that his capital investment in the business had been funded by his parents. This was not an error by the delegate. It was clearly stated by the applicant that he did so. However, the applicant did say that he had paid his parents back. This does not mean that the funding was not made by the parents. It simply means that he had paid it back.
It is analogous to a situation where a person buys a house and borrows money from a bank and then pays the bank back. The funding for the purchase of the house was provided by the bank. Whether or not the person ends up paying back that amount does not, in any way, derogate from the fact that the funding came from the bank in the first place. What the delegate said was quite correct; so that particular of the claim has no merit.
The claim that the five letters were able to be independently verifiable by phoning these persons and/or visiting the premises of one of them is not logical.
As the High Court had said in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at paragraph 26:
The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.
That aspect of the complaint (that the delegate described those letters as “not independently verifiable”) does not have sufficient merit for me to consider, but I will speak of this aspect a little bit later in these reasons.
The claim that the delegate failed to consider whether the clause in the contracts provided that the contracts would only become effective after stamping and signing is a complaint that shows the danger of acting upon the “translation” relied upon by the applicant as being the “one and only true translation”. As I had indicated, there was another translation to do with another contract that talked about “signing (stamping)” as being, in effect, the one and the same action.
The way in which the delegate could well have translated, or interpreted, the matter in her own mind, being a bilingual person, may well have had the signing and stamping as being the same matter. That is strengthened by the very positive statement of the delegate that the fixing of the seal was sufficient to make the contract legally enforceable.
This particular of the applicant’s claim could only have some force if the Court were to accept that the translation in Ms Wong’s affidavit is the one and only translation that could be made of the documentation. By what the High Court have said recently (to which I earlier referred), there is insufficient logic in the Court proceeding upon the basis suggested by the applicant. But this is not a basis for the Court to consider whether there had been a jurisdictional error. In any event, there is nothing that says that the delegate did not consider this aspect at all. I find that there is not sufficient merit in this particular.
With regard to the matters in the next particular by the applicant, as I have said, the delegate did not ever say that a majority shareholder of the company is evidence that such a person is the manager of the company. So one can discount that aspect straightaway.
As for the finding that a person designated as a supervisor is prohibited from being involved in senior management, that is a matter that the delegate gave the applicant ample opportunity to refute in what was said in the letter of October 2022. The applicant ignored the matter and, in many ways, by not taking issue with what the delegate had said on this aspect, there was a tacit acceptance by the applicant that this statement by the delegate was correct. The applicant did not, and has not, and still has not, said that what the delegate stated, in this regard, was wrong.
With regard to the fact the contracts that bear the company seal of one of the parties only are legally enforceable, without the signature of a company officer, it would seem, simply from the earlier translation (of which I spoke earlier), where:
Signed
(Sealed)
is written, such would be sufficient for someone to come to a conclusion that contracts sealed only on behalf of a company are legally enforceable.
Yet it seems that the delegate must have had some knowledge of this. As the Minister has submitted, the delegate was operating out of a Hong Kong Business Skills Processing Centre. It would be expected that the delegates working in that kind of office would build up specialised knowledge of Chinese company law.
The delegate was not required to say that this finding was made from personal knowledge. But it would seem to me that, having regard to the fact that the delegate is working where she is, she wrote with authority and confidence that a supervisor cannot be a member of senior management; a statement which was not refuted by the applicant. It is safe to assume that the delegate does have the knowledge to make such a statement.
There has been no refuting of her statement about the effect of signing as opposed to affixing the seal of the company, other than a comment by the counsel for the applicant who claimed that the delegate was “simply making it up”. That is a very bold accusation to make of a delegate. But for all the reasons I have given, I do not see that there is much merit in that particular.
The other particulars, as well as part of the particular regarding the letters from the business associates, can really be looked at in this way. What the delegate did was say to the applicant, in October 2022, that the public information was that the applicant was the supervisor and his mother was the general manager. The delegate said to the applicant that, according to China company laws, a supervisor of a company cannot act in a role of senior management.
The applicant, when giving material in reply, did not address either of those issues and, in fact, gave the delegate “court judgments”. Each of those court judgments named the general manager and legal representative of the company as being the mother. None of those judgments named the applicant as being the general manager. It is the mother who has been involved in the court matters.
When all of this information is looked at:
·that the public domain information is that the applicant is a supervisor, the mother is a general manager;
·that the court documents say exactly that; and
·the PRC company law is that the applicant, if he is a supervisor, cannot be involved in senior management,
it would all tend to show that the applicant was not a person maintaining that day to day management of the business.
The fact that five persons had said that they had had a positive experience with the applicant in projects that they had been involved in, and that the applicant had signed three contracts which were all sealed with the company seal, is, according to the delegate, not sufficient to override the concern on the conflicting information on the applicant’s position in the company.
That finding was well and truly open to the delegate. Having come to that conclusion, it cannot be said that the delegate erred when finding that the business nominated by the applicant did not satisfy the definition of “main business”. This was very much the state of the evidence before the delegate.
It seems to me a finding, that the applicant did not satisfy the requirements of clause 132.225, was well and truly open, and that none of the matters, given as particulars by the applicant, have undermined that conclusion. Nor have they shown that the delegate has failed to fully engage with the material that the applicant has given to the delegate.
Having come to that conclusion, I am not satisfied that any jurisdictional error has been illustrated.
I dismiss the application with costs fixed in the sum of $8,371.30
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 4 July 2023
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