Jianzhu v Minister for Immigration and Multicultural Affairs

[2002] FCA 981

FEDERAL COURT OF AUSTRALIA

Jianzhu v Minister for Immigration & Multicultural Affairs [2002] FCA 981

Migration Act 1958, ss 54, 56, 476(1)(a), (c) and (e)
Migration Regulations 1994, Schedule 2 clauses 131.213(3), 131.222(1)

‘A’ v Pelekanakis (1999) 91 FCR 70
Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388
Hoare v The Queen (1989) 167 CLR 348
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

HUANG JIANZHU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1055 OF 2001

SUNDBERG J
7 AUGUST 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1055 OF 2001

BETWEEN:	HUANG JIANZHU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	7 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1055 OF 2001

BETWEEN:	HUANG JIANZHU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	7 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. The applicant is a Chinese national who on 20 November 2000 applied for a class AD (Business Skills (Migrant)) subclass 131 (investment-linked) visa (“the investment visa”). The applicant provided numerous documents in support of his application. On 23 July 2001 the Australian Consulate General Hong Kong Migration Office wrote to the applicant to inform him that his application was being considered but that it was necessary for him to provide further information. The applicant purported to comply with this request on 23 August 2001.

2. The Minister’s delegate refused the applicant’s investment visa application on 18 September 2001. Section 66 of the Migration Act 1958 (Cth) (“the Act”) provides that the Minister need not give written reasons why a criterion was not satisfied or a provision of the Act or Migration Regulations 1994 (Cth) (“the Regulations”) prevented the grant of an investment visa or any other visa that cannot be granted while an applicant is in the migration zone. Despite s 66, the applicant was sent a copy of the delegate’s decision record which noted the reasons why the delegate had determined that the requirements of the investment visa had not been satisfied.

3. The applicant seeks review of this decision by the Court pursuant to Part 8 of the Act. The decision is not one capable of review by the Migration Review Tribunal as it does not fall within s 338 of the Act. The Court’s jurisdiction to review is derived from s 486 of the Act.

   STATUTORY PROVISIONS

4. Part 131 of Schedule 2 to the Regulations sets out the criteria an applicant must satisfy at the time of applying for an investment visa and at the time when the decision to grant or refuse the investment visa is made. Criteria to be satisfied at the time of application include clause 131.213(3) which provides:

   “The total net value of the assets owned by:

   (a)the applicant; or

   (b)the applicant and his or her spouse together;

   throughout the 2 fiscal years immediately preceding the making of the application was at least 50% more than the value of funds to be deposited in the designated investment in the name of the applicant, or in the names of the applicant and members of his or her family unit, as the case requires.”

   Criteria to be satisfied at the time the decision is made include clause 131.222(1) which provides:

   “The applicant provides evidence that he or she has made a designated investment of an amount of AUD750,000, AUD1,000,000, AUD1,500,000 or AUD2,000,000.”

   The expression “designated investment” is defined in clause 131.111 as an investment in a security specified by the Minister under regulation 5.19A for the purposes of Part 131.

5. In this case, the applicant elected to make a designated investment of AUD2,000,000. By virtue of clauses 131.213(3) and 131.222(1), it was necessary for him to establish that he alone or together with his spouse had total net assets of at least AUD3,000,000 in the years ending 31 December 1998 and 31 December 1999.

   GROUNDS OF REVIEW

6. The applicant contends that the Minister by his delegate made errors of law by failing to have regard to all of the information provided by the applicant when he submitted his application and the additional information supplied pursuant to a request by the office of the delegate. Such disregard the applicant contends is contrary to ss 54 and 56 of the Act and reviewable pursuant to s 476(1)(a). The applicant also contends that the decision involved an error of law that may be reviewed under s 476(1)(e) as the delegate misconstrued clause 131.213(3), misunderstood the financial information supplied and incorrectly applied clause 131.213(3) to the facts. The applicant asserts that these errors of law also meant that the delegate made a decision that was not authorised by the Act or Regulations and thus capable of review pursuant to s 476(1)(c). The applicant further contended in his written submissions that the delegate failed to take into account relevant considerations and took irrelevant considerations into account. This latter ground was not included in the Amended Application for an Order for Review but was pursued in the written submissions and oral argument as a basis for review of the delegate’s decision pursuant to s 476(1)(c) and (e).

   Did the delegate act in contravention of ss 54 and 56 of the Act by failing to have regard to all of the information submitted by the applicant in support of his application for the investment visa?

7. In the decision record the delegate refers to seven documents, being the two documents titled Statement of Asset and Liabilities Position, the Review Report to the Owners of Shaanxi Yinda Technology Trade Company Limited (cited by the delegate as the “limited review of the financial statements of Yinda Technology”), the business licence of Shaan Xi Yinda Technology Trade Company Limited, the capital verification report of Shaan Xi Yinda Technology Trade Company Limited, the business licence of Shaan Xi Yinda Yan An Zi Chang Crude Oil Development Company and a statement of the source of funds of Shaan Xi Yinda Technology Trade Company Limited. I will adopt the terminology of the applicant and delegate and refer to the companies which are relevant to the investment visa application in the following abbreviated forms: Shaan Xi Yinda Technology Trade Company Limited (“Yinda Technology”), Shaan Xi Yinda Yan An Zi Chang Crude Oil Development Company (“Yinda Crude Oil”), Shaan Xi Yinda Real Estate Company (“Yinda Real Estate”) and Shaan Xi Yinda Aluminium Compound Material Factory (“Yinda Factory”). When referring to all four companies, I will call them the “Yinda companies”.

8. The applicant submits that the delegate’s express reference to the seven documents to the exclusion of others provided by the applicant, and her recourse to phrases such as “based on” and “as only” to further connote exclusive reference to these documents, demonstrates that the delegate failed to have regard to all of the documents submitted by the applicant either at the time of his application or pursuant to the request for further information.

9. The applicant also sought to rely on item 7(g) of the Court Book index prepared by the respondent as further evidence that the delegate did not have regard to all of the documents provided by the applicant in support of his investment visa application. Item 7 of the court book index lists the various documents attached to a letter dated 23 August 2001 from the applicant’s representative to the Australian Consulate General Hong Kong Migration Office. The letter was sent in response to that office’s request for the applicant to provide further information and documents so that his application for the investment visa could be further progressed. Item 7(g) is described in the Court Book Index as “Document described by Applicant’s representative as ‘Auditors’ Comments on the changes’”. The date of the document is stated to be unknown, and under the column headed “Page No” the document is stated to be “missing”. The applicant submitted that without adducing further evidence from the delegate, it was impossible to establish whether the document went missing before or after the delegate considered the applicant’s investment visa application. In reply, the respondent submitted that the missing document was not in fact missing but that the Chinese original was included in the Court Book at pages 313 to 317. Reliance was placed on handwritten markings at the top of that document which suggested that it followed sequentially on from the handwritten markings on the documents included as items 7(f) and (h). A letter found at Court Book pages 191 to 195 from a certified public accountant also fits the description of the missing document as the letter states that it is written in response to the request for comments on any changes in the assets and liabilities noted in Statement of Assets and Liabilities Position for the year 2000.

10. In his written submissions the applicant submitted that the delegate contravened s 54(2)(b) because she did not have regard to the information provided in the Review Report. Had the delegate had regard to the information in that Report, she would have concluded that the applicant had assets of AUD3,000,000 irrespective of whether or not the Report included the business activities of Yinda Real Estate, Yinda Factory and Yinda Crude Oil.

11. Section 54(1) and (2) are as follows:

    “(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.”

    Section 56(1) provides that:

    “In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.”

12. Sections 54 and 56 were considered by Weinberg J in ‘A’ v Pelekanakis (1999) 91 FCR 70. His Honour held that the Act imposed a mandatory duty on the Minister to “have regard to all of the information in the application” when determining a visa application. Applying by analogy the decision of Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392, Weinberg J stated at 82:

    “The requirements imposed upon the Minister, through his delegate, cannot be said to have been met if no proper consideration has been given to all the information in question. I am prepared to accept that the duty so imposed is not discharged if no realistic regard is had to that information.”

    He further stated at 83:

    “The expression “have regard to” must, in context, mean “take into account”. It does not, of course, require the recipient of the information to accept it as true, to act upon it, or even ultimately to be influenced by it - Hoare v The Queen (1989) 167 CLR 348 at 365. It does, however, require the recipient of the information to consider it properly in the context of performing the statutory duty imposed upon him, and to which the information to be considered is directed.”

13. I do not accept the applicant’s contention that reference to some but not all of the documents submitted by the applicant in support of his application requires the inference that the delegate did not take into account all of the information provided by applicant. The more plausible reason for the delegate referring specifically to seven of the documents submitted by the applicant is that she only cited those documents which were material to her decision to refuse the applicant’s application. Use of phrases such “based on information provided in the Statements of assets and liabilities position” and “as only the Business Licence” do not imply that regard was had to these documents to the exclusion of others which were not cited by the delegate. Rather, such phrases are used to identify the documents which were of significant relevance to her decision‑making process and which formed the basis of the conclusions that she reached. Indeed, the reverse inference to that posited by the applicant could be drawn from the delegate’s statement “As only the business licence and the Capital Verification Report of Yinda Technology have been submitted…”. Rather than implying exclusive reference to this particular document, the statement suggests that the delegate was mindful of all the documents which formed part of the applicant’s application and was thus able to say what it was the applicant had neglected to submit.

14. I find support for my conclusion that the delegate did have regard to all of the information provided by the applicant in her letter informing the applicant that his application had been refused.  It states that “The decision has been made on the basis of the information and claims made in your application, and after applying the relevant Australian Migration law”.

15. Reference to a document in the Court Book index as “missing” is curious, but again does not support the inference that this document was not taken into account by the delegate when making her decision. It seems that the procedures at the delegate’s office in Hong Kong were efficient enough to detect that it was necessary for the applicant to supply further information and documents after he submitted his application and the initial set of supporting documents. It is therefore likely that the delegate’s office would have contacted the applicant (or the applicant’s representative) if it did not receive one of the documents which the applicant’s representatives stated it was enclosing under the cover of its letter dated 23 August 2001. Moreover, I am not convinced that the document is in fact missing from the Court Book and hence from the delegate’s file. The letter of 22 August 2001 at Court Book pages 191 to 195 fits the description of the missing document. Some confusion may have been created by the fact that the document is in the form of a letter rather than a non‑epistolary attachment. It seems probable that when compiling the Court Book Index (or indeed when the documents were filed in the delegate’s original file), the letter in question was separated from the letter from the applicant’s representatives enclosing the further documents dated 23 August 2001 and placed on the file and in the Court Book in correct chronological order. There can be no inference derived from the delegate’s decision or from the documents included in the Court Book that this letter is indeed missing, or if it is missing, that it went missing before the delegate considered the applicant’s application. It is curious that the applicant has concentrated on the whereabouts as opposed to the contents of this document. Had the document assisted the applicant’s case, surely he would have put it into evidence if in fact it is not the letter of 22 August 2001. He did not do so.

16. I do not follow the argument that the delegate failed to have regard to the information contained in the Review Report because she did not conclude that the applicant had assets of AUD3,000,000 irrespective of whether the Report included all the Yinda companies or only Yinda Technology. The delegate cannot be held to have disregarded the information provided in the Report merely because her finding was adverse to the applicant. See the reference to Hoare v The Queen (1989) 167 CLR 348 at 365 in par 12. The decision record clearly shows that the delegate took the Report into account but did not find it useful because the applicant failed to convince her that the Report detailed assets of a company or group of companies that he or his wife owned. The Report may have indicated that the assets listed in it amounted to in excess of AUD3,000,000, but it did not reveal whether the assets were those of Yinda Technology alone or the Yinda companies as a whole. Furthermore, other documents submitted by the applicant did not establish that he owned Yinda Technology or any of the Yinda companies, and thus the mere detailing of the assets of any of those companies did not of itself establish that the applicant owned total net assets of AUD3,000,000.

    Did the delegate make an error of law by misconstruing clause 131.213(3) and incorrectly applying the facts to it?

17. As is set out above, clause 131.213(3) required the applicant to establish when applying for the investment visa that he alone or together with his wife owned total net assets in 1998 and 1999 that were worth at least 50% more than the designated investment. As the applicant sought to make an investment of AUD2,000,000, he needed to show that he or he and his wife had net assets of at least AUD3,000,000 in the 1998 and 1999 fiscal years. Given that the applicant applied for the investment visa in November 2000, he was also asked to provide further information relating to the total net assets held in the 2000 fiscal year. The applicant also appears to have submitted information relating to the fiscal year ending 31 December 1997.

18. The applicant submits that the delegate did not understand the financial information provided by the applicant and accordingly misapplied the facts to the law as contained in clause 131.213(3). Notwithstanding the particulars provided in the Amended Order for Review, there was no suggestion in the written submissions or oral argument that the delegate misconstrued the criteria set out in clause 131.213(3).

19. In the decision record, the delegate stated that:

    “Based on the information provided in the Statement of assets and liabilities position (SALP), the bulk of your total net assets were held in a business, Shaanxi Yinda Technology Trade Company Limited (Yinda Technology). Your claim of total net assets is predominantly based on your ownership interest in this company. In meeting regulation 131.213(3), you must satisfactorily evidence your ownership claim over the assets included in the assets and liabilities statement of Yinda.”

    The delegate then went on to state that it was not apparent whether the report prepared by a certified public accountant titled ‘Review Report to the Owners of Shaanxi Yinda Technology Trade Company Limited’ included financial statements relating solely to Yinda Technology or encompassed the business activities of Yinda Real Estate, Yinda Factory and Yinda Crude Oil. The delegate stated that while the applicant’s representative had advised her that Yinda Real Estate and Yinda Factory were business divisions of Yinda Technology, no documentary evidence had been submitted in support of this assertion. The delegate also found that although the applicant provided the business licence of Yinda Crude Oil, this document alone did not establish that the applicant or his wife had an ownership interest in that company. Although the delegate did not ultimately determine whether the applicant or his wife owned Yinda Technology, it is implicit in her reference to the transitional Chinese economy, the need for evidence of the source of the claimed asset, and deficiencies in the source documents provided by the applicant in respect of Yinda Technology, that she was not convinced that the applicant or his wife did own Yinda Technology. Given that the delegate did not positively conclude that the applicant or his wife owned any of the Yinda companies, and that even if the applicant or his wife did own Yinda Technology it was impossible to discern which of the assets included in the financial statements were owned by Yinda Technology as opposed to the three other companies whose ownership was definitely in doubt, the delegate concluded that the applicant did not satisfy the criteria in clause 131.212(3).

1. There is nothing in the decision record which suggests that the delegate failed to understand the financial information provided by the applicant. On the contrary, the decision record evinces the delegate’s careful scrutiny of the financial information. Such scrutiny revealed that it was not possible to identify which of the Yinda companies owned the assets that were included in the financial statements. As the delegate was suspicious of the applicant’s ownership rights in respect of at least three if not all the Yinda companies, it was open to the delegate to conclude that the applicant did not own all of the assets listed in the financial statements. Even if the delegate accepted that the applicant or his wife owned Yinda Technology, lack of identification of the assets listed in the financial statements that were wholly owned by Yinda Technology meant that it was impossible to quantify whether the applicant by himself or with his wife had total net assets of AUD3,000,000 in the relevant fiscal years.

2. Furthermore, it is doubtful whether a mistake of the kind the applicant alleges was made by the delegate is a mistake which is capable of review by this Court under s 476(1)(e). Section 476(1)(e) provides:

   “(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

   …

   (e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

   The mistake the applicant contends the delegate made is, as the applicant sets out in his Amended Application for an Order of Review, a misapplication of the facts to the law as contained in reg 131.213(3) rather than a misinterpretation of the law which is to be applied to the facts.

   Section 476(1)(e) is obviously cast in narrower terms than the common law position regarding error of law. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 McHugh, Gummow and Hayne JJ considered the parameters of s 476(1)(e), and held that in qualifying what amounted to an error of law for the purposes of s 476(1)(e) the legislature intended that an incorrect finding of fact would not constitute a ground of review. They stated (at 22):

   “No doubt it must be recognised that the ground stated in [s 476(1)] (e) is not described simply as an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig [v South Australia (1995) 184 CLR 163], making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind which para (e) deals.”

   They then went on to state that when a decision maker identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material which affects the exercise of its power, it will often follow that the decision maker has made an error in its understanding of the law or has failed to apply the law correctly to the facts.

3. Given that I have found that the delegate did not err in her factual findings it is unnecessary for me to decide whether such an error if it had been made would have provided a ground of review under s 476(1)(e).

   Did the delegate make an error of law that is reviewable under s 476(1)(e) by failing to take relevant considerations into account and taking irrelevant considerations into account when making her decision?

4. The applicant identified the following considerations as ones which are irrelevant but were nonetheless taken into account by the delegate:

   ·whether or not the Review Report was inclusive of Yinda Real Estate, Yinda Factory and Yinda Crude Oil

   ·the adverse inference that Yinda Factory and Yinda Real Estate were separate companies rather than business divisions of Yinda Technology.

5. The following considerations were stated to be relevant considerations which the delegate did not take into account:

   ·various matters associated with the Review Report including the fact that it was prepared by a firm of Certified Public Accountants, was conducted in accordance with relevant international standards and confirmed that the applicant and his wife are the owners of the reviewed company

   ·the statement in a document titled ‘Company Auditing Report’ provided under the seal of the People’s Republic of China Industrial and Commerce Administration Bureau that the applicant and his wife are the owners of Yinda Technology

   ·the various descriptions of the activities of Yinda Technology, Yinda Factory and Yinda Real Estate in such documents as ‘Translation Brochure Shaan Xi Yinda Technology Trade Co Ltd’, ‘Company Auditing Report’ and ‘The Business Licence of Enterprise’s Legal Person’ which when considered as a whole established that Yinda Factory and Yinda Real Estate are business divisions of Yinda Technology.

6. The applicant’s complaint in respect of irrelevant and relevant considerations is directed at the delegate’s findings of fact that she could not be certain that the applicant and his wife were the owners of Yinda Technology or that the financial information provided in respect of Yinda Technology encompassed other corporate entities which the applicant had not established he and his wife owned.

7. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 19 McHugh, Gummow and Hayne JJ said:

   “What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts.”

   As the applicant seeks to revisit the factual correctness of the delegate’s decision by relying on allegations that the delegate took irrelevant considerations into account and failed to take relevant considerations into account, the applicant’s complaint is misplaced and does not give rise to a ground of review.

8. In any event, I do not agree that the delegate did take irrelevant considerations into account at the expense of relevant considerations. It was highly relevant, indeed critical, to the delegate’s decision that she consider and determine whether the Review Report encompassed all of the Yinda companies, particularly in light of the confusion over the organisation of the company group and issues relating to ownership. Likewise, the applicant’s failure to provide documents in support of his assertion that Yinda Factory and Yinda Real Estate were divisions within Yinda Technology does not render any incorrect finding of fact caused by such lack of documentary evidence an irrelevant consideration.

9. I also do not regard any of the stated relevant considerations as having been disregarded by the delegate. I refer to my conclusion in pars 13 and 14 that the delegate did take into account all of the documents submitted by the applicant in support of his investment visa application. It may be added that the delegate did not ignore the Review Report; her lack of reliance on it was due to its apparent deficiency in identifying which of the Yinda companies it encompassed. Issues of ownership were also considered by the delegate who determined that the applicant had provided insufficient documentary evidence of his or his wife’s ownership of the Yinda companies in light of the complex situation arising out of China’s transition to a quasi-market economy.

   Did the delegate make a decision that she was not authorised by the Act or Regulations to make?

10. The applicant relies on the contentions already discussed above to found a review of the delegate’s decision on the ground stated in s 476(1)(c). Section 476(1)(c) provides:

    “(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

    …

    (c)that the decision was not authorised by this Act or the regulations.”

    The applicant pressed the argument in written submissions and oral argument that the delegate did not understand the financial information supplied, misapplied the facts to the law as contained in clause 131.213(3) and acted in contravention of ss 54 and 56. The applicant also stated that the delegate took into account irrelevant considerations and disregarded relevant considerations such that her decision was not one that she was authorised to make.

11. As I have already disposed of each of the particular arguments relied on by the applicant to support a review under s 476(1)(c), it follows that the delegate’s decision was not one that was not authorised by the Act or Regulations.

    CONCLUSION

12. The applicant has failed to establish that the decision of the delegate is reviewable on any of the grounds specified in s 476(1)(a), (c) and (e). His application should be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:            7 August 2002

Counsel for the Applicant:	G W Gerkens
Solicitors for the Applicant:	Fernandez Canda Gerkens
Counsel for the Respondent:	C Horan
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	25 July 2002
Date of Judgment:	7 August 2002