Jiang v Minister for Immigration
[2020] FCCA 1490
•2 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION | [2020] FCCA 1490 |
| Catchwords: MIGRATION – Review of a decision of a delegate – refusal of a business nomination and investment visa – whether the delegate erred in excluding from consideration assets held by the applicant where the provenance was uncertain – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Baker v Minister for Immigration [2012] FCAFC 145 Cotterill v Minister for Immigration (2016) 330 ALR 617 CXS18 v Minister for Home Affairs [2020] FCAFC 18 Kalala v Minister for Immigration (2001) 114 FCR 212 Lafu v Minister for Immigration (2009) 112 ALD 1 Minister for Immigration v SZJSS (2010) 243 CLR 164 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZMTA (2019) 264 CLR 421 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v Yusuf (2001) 206 CLR 323 NAJT v Minister for Immigration (2005) 147 FCR 51 Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Singh v Minster for Immigration [2019] FCAFC 3 WAEE v Minister for Immigration (2004) 256 FCR 593 |
| Applicant: | YONG JIANG |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 2212 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 June 2020 |
| Date of Last Submission: | 19 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Zhang Shijing Lawyers |
| Counsel for the Respondent: | Mr N Swan |
| Solicitors for the Respondent: | HWL Ebsworth |
ORDERS
The application filed on 27 August 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2212 of 2019
| YONG JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Jiang, seeks judicial review of a decision of a delegate of the Minister (delegate) made overseas on 24 May 2019. Mr Jiang is also overseas. The delegate refused to grant Mr Jiang a business innovation and investment visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Jiang is a citizen of China born in April 1965.[1] He was invited to apply for the visa on 24 October 2017.[2] On 27 October 2017, he lodged his application, in the Investor stream, for the visa.[3] The application included a wife and child as members of the family unit. On 22 May 2018, a submission prepared by Mr Jiang’s migration agent,[4] was provided to the Minister’s Department, along with a range of documentation.[5]
[1] Court Book (CB) 2
[2] CB 1
[3] CB 1
[4] CB 24-25
[5] CB 26-226
On 25 January 2019, the Minister’s Department wrote to Mr Jiang and sought further information in relation to his application.[6] Relevantly, that letter stated:[7]
[6] CB 230-239
[7] CB 237
Evidence to support your application
Provide evidence:
1.The claims made in your source of funds declaration do not fully account for the source of funds of the capital contributions of the eligible investments. It is noted that you injected approximately RMB2m to the nominated stock account in China in year 2013 and HKD13.5m to the nominated stock account in Hong Kong in year 2015. While you submitted that you were the owner of Shenzhen Phoenix Elite Restaurant Management Co Ltd. and the business made substantial profits in earlier years, the documents on hand indicate that the company had large accumulated losses in year 2015 and 2016 which do not indicate the company was profitable. Furthermore, there is no evidence to link the funds held in Hong Kong to the declared sources in China.
As such, there is insufficient evidence to support that the capital funds of the eligible investments were sourced from your own funds and legally accumulated. As such, I am unable to make a finding that you meet clause 188.245 on the information on hand…
Mr Jiang, by his migration agent, provided a response on 19 February 2019[8] along with a range of documentation.[9] Further information was requested on 13 March 2019[10] and apparently provided.[11]
[8] CB 240-241
[9] CB 242-395
[10] CB 397-403
[11] CB 405
On 24 May 2019, the delegate refused to grant Mr Jiang the visa.[12]
[12] CB 418-422
The delegate’s decision
In order to be granted the visa, Mr Jiang had to meet a range of criteria: ss.31(3) and 65(1)(a)(ii) of the Migration Act 1958 (Cth) (Migration Act). Relevantly, this included clauses 188.245 and 188.247 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:
188.245
For the 2 fiscal years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, had a net value of at least AUD2 250 000.
188.247
The business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:
(a) are lawfully acquired; and
(b) are available for transfer to Australia within 2 years after the grant of a Subclass 188 visa.
The delegate stated that Mr Jiang had been invited to apply for the visa in October 2017, and that clause 188.245 required, for the two fiscal years immediately prior to that time, the “business and personal assets” of Mr Jiang “had a net value of at least AUD$2,250,000”. The delegate then stated that, according to the “Statement of Assets and Liabilities Position” provided by Mr Jiang for 31 December 2015 and 31 December 2016, the net asset position declared by him was:[13]
[13] cf. CB 148-154
a)December 2015:
i)stock and cash with Donghai Securities in China – RMB 9.41 million (AUD 1.989 million); and
ii)stock and cash with the Bank of Communications in Hong Kong (Bank of Communications) – HKD 14.6 million (AUD 2.588 million).
Amounting to AUD 4.58 million
b)December 2016:
i)stock and cash with Donghai Securities in China – RMB 9.19 million (AUD 1.830 million); and
ii)Stock and cash with the Bank of Communications – HKD 16.8 million (AUD 3 million).
Amounting to AUD 4.83 million
The delegate observed that Mr Jiang had provided “inconsistent” accounts of the source of the assets he held with the Bank of Communications, which “casts doubts on the true origin of the funds transferred to Hong Kong”.[14] The delegate then stated:[15]
…in addition, there is no evidence made available to link the funds held in Hong Kong to the declared sources in China despite our specific request for such. Even if I were to accept your claim of having derived substantial gains from the disposal of restricted stocks in China, the trail of funds transfer from China to Hong Kong has not been satisfactorily evidenced.
[14] CB 422
[15] CB 422
The delegate further stated that she was “unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source”. The delegate “excluded” those funds (held with the Bank of Communications) from the calculation of the value of Mr Jiang’s assets for the purpose of clause 188.245.[16] With those assets excluded, the other assets declared by Mr Jiang (ie. those with Donghai Securities) did not, in 2015 or 2016, amount to AUD 2.25 million. The delegate was thus not satisfied that Mr Jiang met clause 188.245 and refused to grant the visa.[17]
[16] CB 422
[17] CB 422
The current proceedings
These proceedings began with a show cause application filed on 27 August 2019. There is one particularised ground in that application upon which Mr Jiang continues to rely:
1.The respondent's delegate, found that the applicant did not meet the requirements of clause 188.245 in Schedule 2 of the Migration Regulations because the respondent was "not satisfied that [the applicant] had net assets of AUD2.25 million for the 2 fiscal years immediately before the time of invitation to apply for the visa". The delegate fell into jurisdictional error in making this finding for one or more of the following reasons:
a)The delegate reasoned that, because she was unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source, "they have to be excluded from the calculation of your assets value for the purpose of clause 188.245". This construction of clause 188.245 is erroneous. Whether or not the decision-maker can ascertain whether funds were derived from the claimed source is a factor relevant to whether the applicant owned the funds, but not decisive. The delegate wrongly treated the matter as decisive.
b) The applicant provided satisfactory evidence to the delegate to support a conclusion that the applicant owned the stock and cash assets in Hong Kong. The delegate erred in not giving proper and genuine consideration to the evidence.
There is no dispute that the Court has jurisdiction to hear the application. On 10 January 2020, I granted an extension of time under s.477(2) of the Migration Act.
The only evidence I have before me is the court book filed on 28 October 2019 and a supplementary court book filed on 30 January 2020.
Both Mr Jiang and the Minister filed helpful pre-hearing written submissions and made further submissions orally through their representatives at the trial of the matter on 5 June 2020. I have been assisted by those submissions.
In order to deal with a possible issue of futility, I invited counsel for Mr Jiang to provide a note on whether the funds in issue before the delegate remained available to transfer to Australia. Counsel for the applicant filed submissions on that issue, reflective of his instructions that Mr Jiang continues to hold funds in Hong Kong of approximately AUD 2.7 million which are available to transfer to Australia.
I provided the Minister with a like opportunity, in the event that something calling for a response was filed. In short submissions filed on 19 June 2020 the Minister did not seek to raise an issue of futility. I proceed on the basis that no issue of futility arises.
Consideration
This case raises somewhat unusual issues of interpretation, both of the relevant visa criteria and of the delegate’s reasons. While Mr Jiang concedes that he was unable to provide a complete and contemporaneous document trail relating to the funds in issue, he maintains that he provided sufficient for the delegate to be satisfied that the money was his and that the delegate erred in finding that the funds in issue had to be excluded from consideration.
Clause 188.245 provides as a time of decision (see notes under clause 188.2) criterion for a subclass 188 visa:
For the 2 fiscal years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner, had a net value of at least AUD 2,250,000.
The term “fiscal year” is defined in regulation 1.03. No issue was raised about that definition.
Since Mr Jiang lodged his visa application in October 2017, it appears that in general he needed to provide evidence of his business and personal asset position for the years ending 31 December 2015 and 31 December 2016.
As recorded in the delegate’s decision:[18]
a)Mr Jiang provided to the Minister’s Department a statement of assets and liabilities position which recorded a net asset position as at 31 December 2015[19] and 31 December 2016;[20]
b)the statements recorded that Mr Jiang had stock and cash assets with Donghai Securities Co Ltd in mainland China and with the Bank of Communications;
c)the delegate was not concerned about the stock and cash assets in mainland China, but was concerned about the stock and cash assets in Hong Kong.
[18] CB 421
[19] CB 148-150
[20] CB 152-154
The issue in dispute relates to the delegate’s concern about the stock and cash assets with the Bank of Communications.
Mr Jiang, in his Statement of Assets and Liabilities Position[21] indicated[22] that as at 31 December 2015 he had net assets with a market value of HKD 14,596,560 with the Bank of Communications.
[21] at CB 148-150
[22] at CB 150
A document at CB 42 indicates that in the year ending 31 December 2015 Mr Jiang injected HKD 13,469,980 into the Bank of Communications securities account.
The delegate was interested in the source of the injection of HKD 13,469,980. Thus a letter from the Minister’s Department to Mr Jiang dated 25 January 2019,[23] after noting that he “injected approximately … HKD 13.5 million to the nominated stock account in Hong Kong in year 2015”, continued that “there is insufficient evidence to support that the capital funds of the eligible investments were sourced from your own funds and legally accumulated”.
[23] at CB 237
A reply from Mr Jiang’s agent dated 19 February 2019 included the following:
a)the agent stated[24] that “the source of funds for investing in the nominated stock in Hong Kong [in 2015] was not derived from Shenzhen Phoenix Elite Restaurant [but] rather derived … from disposal of Xianggenqing shares in China”. The agent added that Mr Jiang invested RMB 2 million “in a stock called Xianggeqing returning profits of RMB 18 million with tax receipts”. The agent added “Please refer to attached Mr Jiang Yong’s statement”;
b)an English translation of the statement of Mr Jiang to which the agent refers at CB 242 is at CB 374-376. Mr Jiang at CB 374.5 commences an explanation of his investment in Xiangeqing. He continues at CB 374.10 that initially he invested about RMB 2 million in the shares. He continues at CB 375.4:
The total income from selling this share was more than RMB 21 million before tax, while the after tax net gain was RMB 18 million. I obtained formal tax payment certificates after selling the Original Share Stock. Then I put gains in Hong Kong share market via the Bank of Communications and Sun Hung Kai Financials …
On application of exchange rates in December 2015,[25] RMB 18 million was equivalent to about HKD 21,463,000;
c)at CB 264-265 is an English translation of a Customer Account Statement for an account with Donghai Securities Co Ltd in Mr Jiang’s name. The account records the sale by Mr Jiang of shares in Xiangeqing between 23 February and 6 March 2013, and then a transfer of the balance of RMB 10,840,325 out of the account on 13 March 2013. On application of exchange rates in December 2015 at CB 149, RMB 10,840,325 was equivalent to about HKD 12,926,000;
d)at CB 254 is an English translation of an individual income tax certificate issued by the Chinese government to Mr Jiang dated 3 September 2013[26] which records income received by Mr Jiang from the transfer of shares held by Donghai Securities Ltd. The document records income received by Mr Jiang on 6 March 2013 and 13 March 2013 totalling RMB 21,368,000, with tax payable totalling RMB 3,632,560.
[24] at CB 242
[25] at CB 149
[26] with Chinese original at CB 244
Although it is difficult to reconcile the figures in the Donghai Securities Co Ltd Customer Account Statement and the income tax certificate issued by the Chinese government, there appears to be no concern by the delegate about the genuineness of these documents. The documents then establish that in March 2013 Mr Jiang sold shares in China and received an income (net of tax payable to the Chinese government) of about RMB 17,700,000.
The delegate, in her decision dated 24 May 2019, explained her concern about the source of money injected into the Hong Kong securities account in 2015 as follows:[27]
In relation to the source of funds of the nominated assets, you claimed to have derived substantial profits from film production in China from year 2003 to 2009. You also claim to have had an ownership interest in a PRC company Shenzhen Phoenix Elite Restaurant Management Co Ltd since year 2006 and it was profitable until year 2011. There is no evidence to support the business was profitable … While you maintained a constant level of assets as of 31/12/2015 and 3/12/2016, having considered that you deposited HKD 13.5 million into the nominated stock account in Hong Kong in year 2015 and there is no evidence to link such assets to the declared source in China, there is insufficient evidence to support the source of funds of nominated asset.”
[27] at CB 421
The delegate[28] then addressed Mr Jiang’s further evidence provided by Mr Jiang’s agent in February 2019, being that the source of HKD 13.5 million injected into the Hong Kong securities account in 2015 came from the sale of shares in mainland China in 2013. The delegate stated in part:
In addition, there is no evidence made available to link the funds held in Hong Kong to the declared sources in China despite our specific request for such. Even if I were to accept your claim of having derived substantial gains from the disposal of restricted stocks in China, the trail of funds transfer from China to Hong Kong has not been satisfactorily evidenced.
[28] at CB 422
The delegate concluded:[29]
Having considered that a substantial amount of funds were deposited into the nominated stock account in Hong Kong in recent years and in the absence of bank records to support the transfer of funds from China to Hong Kong, I am unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source and they have to be excluded from the calculation of your assets value for the purpose of clause 188.245.
[29] CB 422
Mr Jiang has two related complaints about the above reasoning process as follows.
First, the delegate reasoned that, because she was unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source, “they have to be excluded from the calculation of your assets value for the purpose of clause 188.245”. This construction of clause 188.245 is said to be erroneous. Clause 188.245 requires a decision-maker to determine “the business and personal assets of the applicant” during a two year period. The delegate accepted that Mr Jiang had stock and cash assets with a net asset value of about HKD 14.6 million with the Bank of Communications in December 2015. Prima facie, these were his assets.
On the one hand, it is not inappropriate for a decision-maker to investigate the source of assets held by an applicant, for example to exclude the possibility that the assets are not in truth “assets of the applicant”. Whether or not the decision-maker can ascertain whether assets held by an applicant were derived from the claimed source is a factor relevant to whether the applicant owned the funds, but in Mr Jiang’s submission, it is not determinative. There are other matters relevant to whether assets are in truth assets of the applicant, such as the length of time the applicant held the assets. Where an applicant holds assets in the applicant’s name for a long period of time, this is probative evidence, although again not determinative, in support of a conclusion that the assets are in truth assets of the applicant.
Mr Jiang complains that, in the present case, the delegate treated as determinative the fact that he could not provide financial records which provided a complete chain of connection between the proceeds from the sale of shares in mainland China in 2013 and the injection into the Bank of Communications security account in Hong Kong in 2015. This is clear from two matters as follows:
a)first, this is said to be clear from the words “they have to be excluded” at CB 422.4.
b)secondly, Mr Jiang provided evidence that he continued to hold assets valued at over HKD 15 million in the Bank of Communications account as at 31 December 2016 and 30 September 2017.[30] The fact that he held assets to this value up to 30 September 2017 is said to contribute to a conclusion that he was the true legal owner of the assets in 2015. Yet the delegate made no reference to this point.
[30] see CB 36
Further, as stated in the above paragraphs:
a)Mr Jiang provided evidence that he continued to hold assets valued at over HKD 15 million in the Bank of Communications account as at 31 December 2016 and 30 September 2017;[31]
b)this evidence was relevant to, and contributed to a conclusion, that Mr Jiang was the true owner of the assets in 2015;
c)the delegate made no reference to this evidence.
[31] see CB 36
Mr Jiang submits that where a decision-maker does not refer to a material matter in its reasons for decision, a court can infer that the decision-maker overlooked or failed to have regard to the matter.[32]
[32] see Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69]; Kalala v Minister for Immigration (2001) 114 FCR 212 at [23]; WAEE v Minister for Immigration (2004) 256 FCR 593 at [47]; Lafu v Minister for Immigration (2009) 112 ALD 1 at [53]-[54]; Cotterill v Minister for Immigration (2016) 330 ALR 617 at [100]-[106] and [121]-[123]
Where a decision-maker overlooks or fails to have regard to important material (which could be evidence or an issue), this constitutes jurisdictional error. For example, in WAFP v Minister for Immigration[33] at [21] the Full Federal Court stated:
However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction.
[33] [2003] FCAFC 319
See also Minister for Immigration v SZRKT[34] at [71]-[122] per Robertson J. His Honour, in the course of reviewing authorities, noted at [111] that:
…there is no clear distinction in each case between claims and evidence … The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.
[34] (2013) 212 FCR 99
Mr Jiang submits that in the present matter, the delegate overlooked or failed to have regard to the evidence before it that he continued to hold assets valued at over HKD 15 million in the Bank of Communications account as at 31 December 2016 and 30 September 2017.
Alternatively, Mr Jiang submits that the delegate failed to give proper and genuine consideration to this evidence. In Singh v Minster for Immigration[35] at [30] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ
[35] [2019] FCAFC 3
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
To similar effect, in NAJT v Minister for Immigration[36] at [212] (Madgwick J, Conti J agreeing) stated:
Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
[36] (2005) 147 FCR 51
I prefer the Minister’s submissions concerning the grounds of review advanced.
Issue 1 – misconstruction of clause 188.245
The first error alleged by Mr Jiang is that the delegate adopted an erroneous construction of clause 185.245. That is said to be because:
a)the delegate “reasoned that, because she was unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source, ‘they have to be excluded from the calculation of your assets value for the purpose clause 188.245’”;[37] and
b)the delegate “treated as determinative the fact that the Applicant could not provide financial records which provided a complete chain of connection between the proceeds from the sale of shares in mainland China in 2013 and the injection into the Bank of Communications security account in Hong Kong in 2015”.[38]
[37] Mr Jiang’s submissions at [25]
[38] Mr Jiang’s submission at [27]
Fairly read as a whole, the delegate’s reasons do not show any misconstruction, or misapplication, of clause 185.245.
As the delegate identified,[39] Mr Jiang, in his “Statement of Assets and Liabilities Position” for 2015 and for 2016, declared and relied, in order to satisfy the requirements for the visa, on two categories of assets, stock and cash assets held with the Donghai Securities (in mainland China) and stock and cash assets held with the Bank of Communications (in Hong Kong). On Mr Jiang’s own evidence,[40] the value of the stock and cash assets held with Donghai Security was, in 2015 or 2016, less than AUD 2.25 million. Clause 188.245 required the “business and personal assets” of Mr Jiang to have “a net value of at least AUD 2 250 000”. Accordingly, in order for Mr Jiang to satisfy clause 188.245, he had to, in calculating the net value of his “business and personal assets”, rely on the assets he held with the Bank of Communications; the Donghai Security assets were, alone, insufficient.
[39] CB 420
[40] see eg. CB 148-154
The delegate stated:[41]
Subclass 188 criteria require personal ownership of assets. The ‘assets’ criterion requires that assets must be legally and personally owned. If the source of funds for your assets could not be explained and evidenced, I cannot be reasonably satisfied that they are lawfully acquired. As such, you might not meet the requirements of clause 188.245.
[41] CB 421
In the quote above, the delegate is plainly referring to the requirement of clause 188.247, which requires that the delegate be satisfied that the “business and personal assets” of the applicant “are lawfully acquired”. The delegate is thus here stating that if Mr Jiang did not adequately “explain” and “evidence” the source of funds used to acquire the particular assets he relied on (relevantly for present purposes, the stock and cash assets held with the Bank of Communications), the delegate could not (at least in her own mind) “be reasonably satisfied” that those particular assets were “lawfully acquired”, the consequence of which would be that Mr Jiang had not satisfied clause 188.247.
The delegate then further stated, in effect, that if she was not so satisfied (ie. that a particular asset was “lawfully acquired”), Mr Jiang might not (not would not) meet clause 188.245. There is nothing erroneous about this statement and it does not show any misunderstanding or misapplication of clause 188.245 (or clause 188.247). That is because, if the delegate could not be satisfied that a particular asset was “lawfully acquired”, that particular asset could, in practical effect, not be relied on by Mr Jiang (because, if it was relied on, Mr Jiang would necessarily fail to meet clause 188.247 in relation to that asset and the visa would be refused). However, if Mr Jiang did not rely on that particular asset, that might then cause the total value of his assets to fall under AUD 2.25 million, with the result that he might not satisfy clause 188.245.
In the present case, the delegate plainly held concerns about the true source or origin of the funds used by Mr Jiang to acquire the stock and cash assets held with the Bank of Communications:
a)as the delegate noted in her reasons,[42] Mr Jiang had claimed[43] to have made, between 2003 and 2009, profits in excess of RMB 23 million from film production. He also claimed to have made “substantial profit” from the Shenzhen Phoenix Elite Restaurant Management Co. Ltd. (Shenzhen), a restaurant. However, the delegate observed that Shenzhen had “large accumulated losses” in 2015 and 2016 (2015 being the year during which Mr Jiang deposited HKD 13.5 million into the Bank of Communications account); and
b)the Minister’s Department requested from Mr Jiang further evidence as to the source of the funds used to acquire the stock and cash assets held with the Bank of Communications, including evidence to “link” the funds held in Hong Kong to their claimed source in mainland China.[44] The delegate was, as explained above, concerned by Mr Jiang’s response to this request, because his explanation as to the source of the assets held with the Bank of Communications was “inconsistent” (which “casts doubts on the true origin of the funds transferred to Hong Kong”) and also because, “despite our specific request for such”, no evidence (such as bank records) had been provided to “link” the funds in Hong Kong to the declared sources of those funds in mainland China.
[42] CB 421
[43] in the “Statement of Source of Funds” provided with the visa application: see CB 160-161
[44] see CB 237
The delegate’s conclusions are at CB 422. Importantly, as noted above, the delegate stated that “the trail of funds transfer from China to Hong Kong has not been satisfactorily evidenced” and that she was “unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source”. As Gummow and Hayne JJ stated in Re Minister for Immigration; Ex parte Applicant S154/2002[45] at [57], it was for the applicant to “advance whatever evidence or argument [he] wished” and “for the Tribunal to decide whether [his] claim had been made out”.[46] Here, the evidence actually advanced by Mr Jiang did not satisfy the delegate as to the true source of the assets held with the Bank of Communications. As a result, the delegate considered that those funds “have to be excluded from the calculation of your assets value for the purpose of clause 188.245”.
[45] (2003) 201 ALR 437
[46] Gleeson CJ agreeing at [1]
The delegate’s reasons must be read as a whole.[47] That includes the delegate’s statement quoted above[48] that if the source of the funds used to acquire Mr Jiang’s assets is not “explained and evidenced”, she cannot be “reasonably satisfied” that his assets were “lawfully acquired”. When the delegate’s reasons are read as a whole, it is readily apparent that the delegate reasoned as follows:
a)Mr Jiang’s explanation as to the source of the assets in the Bank of Communications was inconsistent and Mr Jiang had failed to provide (despite a specific request) evidence linking the transfer of funds from the claimed source in mainland China into the Bank of Communications. As a result, the delegate was “unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source”.[49] Accordingly, the delegate could not be “reasonably satisfied” that the assets in the Bank of Communications were “lawfully acquired”;[50]
b)in these circumstances, Mr Jiang’s stock and cash assets held with the Bank of Communications had (in the delegate’s mind) to be “excluded” from the calculation of the total net value of Mr Jiang’s assets, for the purpose of clause 188.245. That is because, as explained above, if those assets were not excluded, Mr Jiang would necessarily fail to meet clause 188.247 (as he had not satisfied the delegate of the source of those assets and hence that they were “lawfully acquired”); and
c)excluding the value of the assets held with the Bank of Communications, the total value of Mr Jiang’s assets was AUD $1.99m (in 2015) and AUD 1.83 million (in 2016). These amounts were below the AUD 2.25 million requirement in clause 188.245, with the consequence that Mr Jiang could not satisfy clause 188.245.
[47] Baker v Minister for Immigration [2012] FCAFC 145 at [45]
[48] CB 421
[49] cf. CB 422
[50] cf. CB 421
So understood, the delegate’s reference to “excluding” the assets held with the Bank of Communications does not establish any misconstruction or misapplication of clause 188.245 in the manner suggested by Mr Jiang, or at all. It simply reflects consideration of the evidence and Mr Jiang’s failure to satisfy the delegate of the source of those assets. That is not to say that the conclusion reached was the only one available, but it was an available conclusion.
Further, even if I were wrong and the delegate did misconstrue or misapply clause 188.245 (by “excluding” assets, or for any other reason), such an error would not be material to the Tribunal’s decision and would not be a jurisdictional error. In the absence of satisfying the delegate of the source of the assets held with the Bank of Communications, the delegate could not be satisfied that the assets were “lawfully acquired”. The consequence is that Mr Jiang simply could not meet clause 188.247, and the grant of the visa would have been refused in any event.[51]
[51] cf. Minister for Immigration v SZMTA (2019) 264 CLR 421 at [45]-[46]
Issue 2 – failure to consider, or give “proper and genuine” consideration, to the evidence
Mr Jiang alleges that the delegate failed to consider, or failed to give “proper and genuine consideration”, to the evidence that Mr Jiang “continued to hold assets valued at over HKD 15 million in the Bank of Communications account as at 31 December 2016 and 31 September 2017”. No such failure by the delegate is established. The deployment of the expression “proper, genuine and realistic” consideration adds nothing in the present case, as it merely seeks to “elide the distinction between judicial review and merits review”.[52]
[52] CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35] per McKerracher, White and Colvin JJ, referring to Minister for Immigration v SZJSS (2010) 243 CLR 164 at [30]-[32] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
First, the fact that Mr Jiang held assets valued at over HKD 15 million in the Bank of Communications account was shown in, among other things, the three “Statement of Assets and Liabilities Position (SALP)” completed by Mr Jiang and provided with his visa application.[53] The delegate expressly referred to those documents in her reasons and set out, by reference to those documents, the value of Mr Jiang’s assets in Donghai Securities and the Bank of Communications as at 31 December 2015 and 31 December 2016.[54] It is, accordingly, not correct for Mr Jiang to suggest that the “delegate made no reference” to the evidence in relation to Mr Jiang’s ongoing holding of assets of over HKD 15 million with the Bank of Communications in 2015, 2016 and 2017. There is also no proper basis to conclude that the delegate failed to consider, or was otherwise unaware, that Mr Jiang was claiming to have held assets with the Bank of Communications, in 2015, 2016 and 2017, valued at over HKD 15 million. This, in itself, is sufficient for this aspect of Ground 1 to fail.
[53] see CB 148-158
[54] CB 421. See also the delegate’s reference as to Mr Jiang “maintain[ing] a constant level of assets as of 31/12/2015 and 31/12/2016…”
Secondly, the evidence the subject of the present argument does not affect in any meaningful way the reasoning process actually adopted by the delegate. Whether or not Mr Jiang continued to hold assets valued at over HKD 15 million in the Bank of Communications as at December 2016 and September 2017 says nothing about the source of the funds used at an earlier time (ie. 2015) to acquire the assets in the Bank of Communications, and it was, as discussed above, the delegate’s non-satisfaction of the source of those funds that was central to her decision. Accordingly, the evidence referred to by Mr Jiang in support of this ground is simply not important or significant to the actual reasoning adopted by the delegate. Even if it was overlooked, no jurisdictional error would result.[55]
[55] see SZRKT at [111]-[112]; Applicant S154 at [57], which is equally applicable; see also Abebe v Commonwealth (1999) 197 CLR 510 at [187]
Here, as explained above, the delegate was simply not satisfied, on the evidence put forward by Mr Jiang, as to whether the assets in the Bank of Communications were derived from their claimed source, with the result that the delegate could not be “reasonably satisfied” that they were “lawfully acquired”, and hence “excluded” them. There was nothing illogical or irrational about the delegate’s non-satisfaction as to the source of those assets, because a reasonable and rational decision-maker could have reached the same state of non-satisfaction on the evidence that was before the delegate.[56]
[56] cf. Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ
Conclusion
Mr Jiang is unable to demonstrate that the decision of the delegate is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 July 2020
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