Lei v Minister for Immigration
[2008] FMCA 1130
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1130 |
| MIGRATION – Business Skills visa – qualifying business – bias. |
| Migration Regulations, s.103 |
| Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; (2001) 65 ALD 1 Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20 |
| Applicant: | YU HUI LEI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 728 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 14 February 2008 |
| Date of Last Submission: | 14 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Ngo |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 31 May 2007 is dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 728 of 2007
| YU HUI LEI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied for a Business Skills (Residence) (class BH) visa on 6 March 2002. The applicant has included her daughter as a secondary visa applicant.
On 13 March 2003 a delegate of the Minister refused to grant the visa. On 3 April 2003 the applicant applied to the Migration Review Tribunal for a review of that decision. On 9 December 2005 the Tribunal affirmed the decision of the delegate.
The applicant sought judicial review of the decision of the Tribunal of 9 December 2005, which was successful. On 30 August 2006, by consent, the decision was quashed and the matter remitted to the Tribunal for hearing according to law.
A differently constituted Tribunal heard the applicant on 11 December 2006. The applicant and her brother both gave evidence before the Tribunal and on 15 January 2007 the applicant was requested to provide further information pursuant to s.359 of the Migration Act, effectively to demonstrate where the funds that she relied upon as qualifying business eligible investments came from or from where they were accumulated from. The applicant responded to the Tribunal on 14 February 2007 with a lengthy explanation.
The key consideration for the Tribunal was whether or not the funds invested were accumulated from a qualifying business or eligible investment activity of the applicant in accordance with
sub-cl.488.222(2). Whilst "qualifying business" and "eligible investment" have specific meanings (see reg.1.03 of the Migration Regulations and cl.844.111), the practical question for the Tribunal in this case was whether or not the moneys the applicant had invested in Australia (in excess of $750,000) were earned by her as a result of commissions on sales she brokered on behalf of sellers or manufacturers of communication products in Australia and elsewhere. Considerable documentation was provided concerning the companies Shenying Mechanical I/E Corporation, MM Cables Beijing and MM Pacific International Pty Ltd. Relevantly, the Tribunal stated:
The Tribunal would expect that, had the funds which are now proposed to be invested in the business been accumulated by commission on those transactions, the visa applicant would be in a position to produce invoices issued pursuant to the brokerage agreements between her business and the sellers/manufacturers for services her business/es rendered to its/their customers (sellers/manufacturers) in facilitating sales. Further documentation would reflect payment of those invoices by those customers and the accumulation of retained profits by the qualifying business/es.
The Tribunal is not satisfied on the evidence presented that an accumulation of funds (approximating those now held as funds to be invested in the business) occurred through payments of invoices rendered by the visa applicant’ s businesses, MM Pacific International Pty. Ltd; MM Cables Beijing; and work as a contractor with Shenyang Mechanical I/E Corporation.
In addition, the next link in the chain, the transfer of funds from the accounts of the qualifying business/s to the visa applicant’s brother has not been established. Had profits in the amounts now being offered as investment funds been transferred from the accounts of the qualifying business/s to the visa applicant’s brother those transfers would have been reflected in the qualifying business/s’ company accounts, company bank statements, etc. Again no cogent evidence of the transfer of funds (approximating those now held as funds invested to be invested in the business) from the qualifying business/s to the visa applicant’s brother has been presented.
Whilst the visa applicant and her brother assert that the funds are comprised of commission earned by the business/s there is a lack of cogent independent documentary evidence showing the flow of funds from the sellers/manufacturers into the company accounts of the qualifying business/s and from those accounts to the visa applicant’s brother.
Although evidence has been presented of the activities of the qualifying business/s and evidence has been presented of the funds, the link between the two has not been established. That may be due to the fact that the visa applicant’s business/es did not conduct sufficient transactions to accumulate the funds and the funds were sourced wholly or partly elsewhere or due to the failure or unwillingness of the parties to record the transactions upon which they earned commission. In the result, without a documentary trail or link between the claimed activity and the funds the Tribunal is not satisfied that the funds to be invested were accumulated from the qualifying business.
As a result, the Tribunal refused the application.
The applicant provided material from Coopers and Lybrand Accountants Beijing office, which was addressed to the New Zealand embassy, branch manager and counsel (immigration) dated 1995. This material describes her as a sales agent for MM Cable New Zealand, Liaoning Province. The accountant says that she had worked for MM Cable New Zealand as the agent for Liaoning Province since 1989 and between 1989 and 1993, had brokered contracts in excess of $US7 million, earning sales commissions of 4 per cent of that sum. A list of eight contracts or orders were provided within the document totalling $US 7,449,702.00 although the list is described as contracts "secured through Ms Lei and has been confirmed by MM Cable New Zealand". As to the source of the funds, the report says:
The applicant claimed the main source of her assets was derived through her sales commission from MM Cable New Zealand.
We have obtained a direct confirmation from MM Cable New Zealand on the list of sales contracts secured by Ms Lei from 1989 and 1993 and the commission paid to her.
Later the document confirms that Ms Lei's latest bank balance was cited by the accountant. There is also a letter from Mr George Khor who is described as the "Business Manager, Export" of MM Cables Communication Products, stating that the applicant is a business associate of her brother and had represented the company's interests for the supply of optical fibre cable and other telecommunications equipment in the Xinjiang Province in China, and that the total amount of commission and rebates payable is $US1.2 million. Unfortunately, none of the documents provided show the transfer of funds. Numerous documents were provided showing buying and selling of shares with those funds once received, and investment of those funds in term deposits. The documentary trail for the funds, once they were in the hands of the applicant, was well detailed.
A similar letter to that of Mr Khor was provided by Su-vun Chang, a business manager at MM Communications Products, stating:
This is to certify that Ms Yu Hui Lei owns 100 per cent of the company in Shen Yang, China known as MM Cables Communication Products. She has successfully managed this company from 1989 till the present time.
The letter includes a schedule that is said to be the details of the contract secured through Ms Lei from 1989 to 1993. Further documents apparently from MM Cables Beijing provide confirmation of an agreement to pay 1.5 per cent commission.
There are many documents evidencing work of Ms Lei in negotiating contracts, however, there are no documents showing the actual funds transfers such as bank statements or the equivalent.
In oral submissions the applicant's case was that it was unreasonable for the Tribunal not to accept the statements of Khor and Chang and that if the Tribunal did not accept their written statements, the Tribunal ought to have investigated the matter further.
It is clear that the Tribunal did not accept the applicant’s case as a result of the lack of independent documentary evidence showing the flow of funds, as set out in the quotes above.
These matters were the subject of discussion at the hearing as appears in the transcript, for example, at pages 11-13, 18 and 25:
MEMBER: And then you’re saying that you run a qualifying business but you can’t demonstrate the relationship between the business and the money, so it looks like your brother has just helped you by putting his money into the accounts.
MRS LEI:Yes.
MEMBER:Okay. So there’s no documentary evidence to satisfy the department or the first tribunal or me that that $750,000 that’s sitting in these accounts at ANZ are generated profits from - - -
MRS LEI:Yes, this come from MM Cable.
MEMBER:Yes, but there’s no documentary chain of evidence.
MRS LEI:But this is sure. This is money from them.
MEMBER:Well, you can tell me - - -
MRS LEI:But you can ask - - -
MEMBER:Take me to the evidence here.
MRS LEI:Yes.
MEMBER:Did you bring your evidence with you today?
MRS LEI:Yes, I did. This one.
MEMBER:You see, in the delegate’s decision and the first tribunal’s decision they would have referred to clause 844.222, and I know because I’ve listened to the tapes of your hearing in front of Mr Mahoney.
MRS LEI:Yes.
MEMBER:So I know that you have been referred to this provision before, but I’ll go through it again, though. At 844.222 says, “The minister” – and on review that means the tribunal as well because – “is satisfied based on the evidence provided by the appellant” – that’s you – “that the funds”- that’s the money in the ANZ accounts – “invested were legally owned by you” – and if you’re married you and your spouse together – “and encumbered” – that is, they’re not just there as security for some loans – “and (c)” – this is the important one because this is the one that the department found you couldn’t satisfy – “(c) that the funds in your ANZ account were accumulated from the qualifying business or eligible investment activities of the applicant.”
So what you’ve done is you’ve gone to the department and you’ve said, “I’ve got this money and it’s because of my qualifying business.” The department said, “Well, can you produce evidence?” And you haven’t been able to. So then the first tribunal said the same thing. You’ve got this money in the ANZ and you’ve got a qualifying business. Can you produce evidence that the funds were accumulated by the qualifying business and you couldn’t produce the evidence. So here we are again, and I’m wondering how you are putting your case because it seems to me that there’s still a lack of evidence that your qualifying business accumulated these moneys.
MRS LEI:Sorry. Can I ask you a question? Do you mean the transaction sheet – from the original – transaction sheet, do you mean that?
MEMBER:Mrs Lei, you have to show me the documents, so if you want to refer to something you refer to it and show me. You can’t ask me to produce a document.
MRS LEI:Okay. Yes, I still keep one, if you want to see, and only the transaction from China from my Hua Mai to the Australian company, that’s my brother’s company. I just guarantee the hundred per cent of our income just came from MM Cables. We didn’t do any other business. We only involve that business.
MEMBER:All right. Can you take me to the relevant documents?
MRS LEI:Yes. I don’t know what they want. I thought that I provide enough document but they didn’t tell us exactly what, and they - - -
MEMBER:Do you have the documents?
MRS LEI:Yes, here. Yes, I think that’s a lot of documents, I think that’s enough. Yes.
MEMBER:Thank you. All right. Thank you, Mrs Lei, I’ll have a look at those then.
MRS LEI:This one.
MEMBER:But these aren’t the defendant documents, and they refer to transactions between 1989 and 1993.
MRS LEI:Yes, that’s where – yes, a long time. Yes, that’s the international accountant firm and they checked all the things.
MEMBER:Do you recall that at the end of the hearing that you had in front of Mr Mahoney back in July 2005 he asked you to produce certain documents. He said to you, “look” he wasn’t satisfied on the evidence he had in front of him but he was going to take some time to write his decision and you had that time to lodge further documents, and then he went and made his decision and then you went to the Federal Court and said, “Well, Mr Mahoney fell into error, made a mistake because we actually provided new documents and he didn’t look at them.” Are these the documents that you gave to Mr Mahoney and you say that he didn’t look at? Mr Mahoney was the last member.
…
MEMBER:I’ll explain that to you. You haven’t been rejected on the basis that MMC Pacific International Pty Ltd is not a qualified business, you’ve been rejected on the basis that - - -
MRS LEI:To what part? You tell me you reject – what part?
MEMBER:All right, I was about to. You were rejected on the basis that you were unable to prove that the funds in your ANZ term deposit accounts were accumulated as a result of your activities in MMC Pacific International, so what the tribunal is looking for is independent documentary evidence showing that the funds that are sitting in those term deposits with ANZ Bank were accumulated as a result of the activities, so it’s some sort of link or bridge between your activities with this company MMC Pacific International and the funds in the ANZ. Are you able to provide evidence that the funds that you have in the term deposits in ANZ were accumulated as a result of your work with MMC Pacific?
INTERPRETER: Can you tell me exactly what type of evidence you’re looking for?
MEMBER:Well, I’m looking for evidence that indicates that the funds were sourced from MMC, so bank statements and transfers and so on that would indicate that the funds were sent from MMC Pacific International and that the funds that are in the ANZ account were generated through the commercial activities of MMC Pacific.
INTERPRETER: Because we need to provide the evidence for the period from 89 to 96. During this period MMC wasn’t in existence yet.
MEMBER:It’s not limited to that time frame. You are able to show - - -
INTERPRETER: Can you list other documents I need to supply?
MEMBER:Well, it’s not up to me to tell you how to make your case.
…
MEMBER:All right. So you’re asking me to provide more clarification. The previous tribunal member already did provide some indication and I was anticipating that you would be submitting documents that actually corroborated your evidence about the business MMC Pacific International. In other words documentary evidence that substantiated your claims that MMC Pacific International was doing this work. So invoices that it rendered to its customers, contacts, agreements, bank statements showing payments of commission from MM Cables.
I mean you say that you’ve been operating this business for many years now and you were a top student and a hardworking business woman.MRS LEI:Of course, yes, very top. I was the first one.
MEMBER:Okay. So you would understand then that if I have to be satisfied that MMC Pacific International accumulated these moneys that are now in the ANZ accounts I need to look at evidence. I need to see that MMC Pacific was involved in these businesses and derived the income you say it derived.
The Tribunal set out to identify the business and transactions. The Tribunal was referring to the correct business in the above exchanges.
At page 17 of the transcript the applicant identifies the qualifying business in the following terms:
MEMBER:So is the qualifying business MMC Pacific International Pty Ltd?
MRS LEI:Of course, hundred per cent.
MEMBER:Hundred per cent.
MRS LEI:Yes.
MEMBER:No other associated company?
MRS LEI:No.
MEMBER:That is the qualifying business?
MRS LEI:Yes.
MEMBER:All right, well, the next - - -
MRS LEI:All the qualifying business – I didn’t involve any, just black business or just problem business, nothing.
MEMBER:You weren’t involved in black business?
MRS LEI:No. Hundred per cent.
The Tribunal clearly referred to the report of the accountants in the decision, however, none of these documents go to the matter that was troubling the Tribunal, namely whether or not any funds were actually transferred from these independent businesses.
The applicant has not been able to point to documentary evidence showing the source of the funds and therefore it cannot be said that the Tribunal failed to have regard to that documentary evidence. The main thrust of the applicant's case then becomes one of a complaint that the Tribunal did not accept her evidence in the circumstances of this particular case. It is not open to this court to review decisions of the MRT on their merits, but only if jurisdictional error is established. In this regard the applicant's case must be refused.
On 15 January 2007 the Tribunal wrote to the applicant further identifying this issue, as is recounted by the Tribunal at para.55 of their decision as follows:
On 15 January 2007 the Tribunal sent the following letter to the visa applicant:
I am writing about your application to the Tribunal for review of a decision on a BH – Business Skills – Established Business (Residence)(Class BH) visa.
Section 359(2) of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of a decision.
Accordingly, the Tribunal now invites you to provide the following further information:
You are invited to comment, in writing on the following information:
· You are invited to identify “the funds invested” for the purposes of subclause 844.222(2);
· You are invited to identify the business or businesses or investment activity or activities upon which you rely as the “qualifying business” eligible investment activities for the purposes of subclause 8444.222(2); and
· You are invited to provide documentary evidence that the funds invested were accumulated by the qualifying business or eligible investment activities for the purposes of subclause 8444.222(2)(c).
The applicant's application contains grounds of application that are headed up "Background", however, identifies seven specific points which I deal with.
Ground 1
The applicant contended that the Tribunal had formed its decision to refuse the application before the hearing. The relevant test for actual bias was described by the High Court in Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; (2001) 65 ALD 1; where Gleeson CJ and Gummow J said (at [72]):
[72] The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.As counsel for the Minister points out, it is not easy to prove actual bias, and there is nothing in the material before me to show evidence of actual bias.
As the applicant is representing herself, it is appropriate that I go on to consider whether or not her case sounds in apprehended bias. The test for apprehended bias is described in Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20 at [27]-[28] where Gleeson CJ, Gaudron and Gummow JJ said:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided7. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
There is simply nothing in the material placed before me to indicate a basis for a claim of apprehension of bias. It is clear that the Tribunal were concerned as to the extent of the evidence about a matter crucial to the decision, and clearly raised that with the applicant. I therefore refuse this ground.
Ground 2
In support of ground 2 the applicant claims the Tribunal member did not read the Court Book before the hearing. It does not appear to me that this is a basis for attacking the decision of the Tribunal. It is clear from the Tribunal's reasons that the Tribunal must have had regard to a number of important documents. There is no evidence that the Tribunal member had not read the Court Book by the time of the decision. The Tribunal specifically acknowledged that the Court Book was before it (see para.43 of the decision). I therefore refuse this ground.
Ground 3
The applicant says that the Tribunal did not consider the international accountant's report. This claim is simply wrong in that the Tribunal addresses the accountant's report at paras.50, 54 and 56 of the decision. It also identifies this as one of the documents the Tribunal had regard to at the commencement of the decision (see para.4). This ground appears to be a claim that the Tribunal were obliged to accept the accountant's report as conclusive evidence on the matter that was troubling the Tribunal. The Tribunal is not bound to accept the report it was given by the accountant, nor did this report specifically address the issue of concern to the Tribunal.
Ground 4
This ground appears to claim that the Tribunal confused the accountant's report with a letter from a previous solicitor of the applicant. It is simply not open, when one reads the Tribunal's decision, to conclude that the accountant's report was ignored or confused with another document.
Ground 5
In this ground the applicant claims that the commissions she received were recorded in the accountant's report. Again, this does not address the concern of the Tribunal for evidence showing the transfer of the funds. The accountant's report does not purport to report that the accountant had sighted the relevant documents showing the movement of the moneys concerned. This ground, again, seeks to require the Tribunal to accept the evidence of the accountants.
Ground 6
The applicant alleges that the Tribunal did not notify the applicant of what the Tribunal required and even alleges that the Tribunal "fabricated stories". It is clear that the Tribunal did identify to the applicant the source of its concern and specifically addressed this in its decision. It is not unsurprising that a Tribunal would have been sceptical of evidence of the movement of such large amounts of money by way of commission without documents such as bank statements or other documents from arm's length companies evidencing the transactions. Such documents, one would have thought, would have been readily available to the applicant to produce to the Tribunal if the transactions took place as she said. I do not find that this is a proper ground for judicial review.
Ground 7
In support of this ground the applicant says that a number of immigration officers and Tribunal members have assessed her application over the past several years, applying their own standards. In this matter it is for me to consider the decision of the Migration Review Tribunal that is the subject of review. I have not been persuaded that the process adopted by the Tribunal, nor the standard that it applied is contrary to law. In these circumstances, this ground cannot succeed.
As the applicant has not established any ground for review, I therefore refuse the current application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 19 August 2008
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