Li v Minister for Immigration

[2019] FCCA 1349

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1349

Catchwords:
MIGRATION – Business Skills (Resident) Visa – refusal – review of Administrative Appeals Tribunal decision – no matter of principle.

Legislation:

Migration Act 1958 (Cth), ss.134, 425, 474

Migration Regulations 1994 (Cth), reg.1.03, 1.11, cl.890 of sch.2

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252
Hossain v Minister for Immigration & Border Protection (2018) 92 ALSR 780
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 432

First Applicant: WENYU LI

Second Applicant: YING MA

Third Applicant: JINGJING LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2947 of 2015

Judgment of: Judge Cameron

Hearing date: 30 April 2019

Date of Last Submission: 30 April 2019

Delivered at: Sydney

Delivered on: 22 May 2019

REPRESENTATION

Counsel for the Applicants: Mr L. Karp

Solicitors for the Applicants: Juris Cor Legal

Counsel for the Respondents: Ms A.B. Douglas-Baker

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2947 of 2015

WENYU LI

First Applicant

YING MA

Second Applicant

JINGJING LI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of China.  On 3 July 2013 the first applicant applied to what is now the Department of Home Affairs (“Department”) for a Business Skills (Residence) (Class DF) Business Owner (Subclass 890) visa.  His wife and daughter, the second and third applicants respectively, were included in the application as members of his family unit.

2. On 26 March 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

3. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. Part 890 of sch.2 to the Migration Regulations 1994 (“Regulations”) sets out the criteria for the grant of a subclass 890 visa. At all material times, cls.890.211 and 890.221 provided:

   890.21—Criteria to be satisfied at time of application

   890.211

   (1)The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

   …

   890.22—Criteria to be satisfied at time of decision

   890.221

   The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.

2. “Ownership interest” is defined in reg.1.03 as having the meaning given to it in s.134(10) of the Act which provides:

   ownership interest, in relation to a business, means an interest in the business as:

   (a)     a shareholder in a company that carries on the business; or

   …

3. At all material times, reg.1.11 relevantly defined “main business” in the following terms:

   1.11  Main business

   (1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

   …

   (b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   …

4. Regulation 1.03 defined “qualifying business” as follows: 

   qualifying business means an enterprise that:

   (a)is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

   (b)is not operated primarily or substantially for the purpose of speculative or passive investment.

BACKGROUND FACTS

Visa application

1. The visa application was made on the basis that the first applicant had an ownership interest in his nominated main business in Australia, Fortune Maker Pty Ltd (trading as Crazy Dollar), described as a “grocery, daily commodity shop”.  The first applicant described himself as general manager and director.

2. In a written statement provided to the Department and summarised by the Tribunal (the statement was not reproduced in the Court Book), the first applicant made the following claims:

   a)he chose to invest in a dollar-shop business and had initially looked at two stores:  Crazy Dollar and Super Value.  After conducting his own researches, he chose Crazy Dollar for its potential to grow;

   b)in January 2011 he paid $100,000 for 35% of the business’s shares;

   c)thereafter he became involved in the business and identified four major issues:  the wholesalers being used, the quality of the goods, the business’s limited products, and the business’s sole dependence on retail rather than also trading in wholesale.  He went about changing the business and because of his connections in China he was asked to take on more responsibility;

   d)from March 2011 to June 2011 he visited 150 manufacturers in China with whom he negotiated directly.  His business strategy paid off and the business’s revenue increased; and

   e)in February 2012 he paid $57,750 for a further 25% of the business’s shares.

3. The first applicant relevantly provided documents relating to his purchase of the shares, documents from the Australian Securities and Investment Commission (“ASIC”) relating to the transfer of shares, financial documents relating to the business and its employees, bank statements, and a list of the business’s suppliers.

Review application

1. On 28 August 2014 the applicants’ representative provided a written submission to the Tribunal and further documentary evidence.  As summarised by the Tribunal, it was submitted that the first applicant’s “supplier liaison role” demonstrated his significant involvement in the day-to-day management of the business.  It was submitted that the first applicant typically worked 40 hours a week at the premises (unless he was on an overseas business trip), had been responsible for implementing the pricing strategy, had been directly involved in the process of re-stocking, and had attended regular company meetings in relation to the operation of the business where important decisions were made.  It was also submitted that the first applicant had spent some time in China speaking to suppliers and expanding the wholesale part of the business.  He had also returned to China to visit sick family members.  It was submitted that the first applicant had maintained his involvement in the business during these absences by having conversations with his wife and business partner and delegating tasks to them.

2. The first applicant’s representative provided further submissions on 2 August 2015 setting out the first applicant’s involvement in the business and providing a description of his duties as general manager.

3. The first applicant appeared before the Tribunal on 11 August 2015.

The Tribunal’s decision and reasons

1. In relation to reg.1.11(1)(a), the Tribunal was satisfied that at the time of application the first applicant owned 60% of Crazy Dollar’s shares and therefore had an “ownership interest” in the main business as defined in s.134(10) of the Act.

2. However, in relation to reg.1.11(1)(b) the Tribunal was not satisfied that the first applicant had maintained direct and continuous involvement in Crazy Dollar’s day-to-day management and in making decisions affecting its overall direction and performance in the two year period prior to his visa application being lodged. It noted the following matters in this connection:

   a)the first applicant’s oral evidence in relation to the purchase of his interest in the business was not consistent with the actual amounts exchanged according to the ASIC records;

   b)the first applicant’s evidence about the research he had conducted before investing in the business was unpersuasive and inconsistent.  In particular, when asked at the Tribunal hearing how he had obtained data about the stores’ customers per hour and the average cost of their purchases, the first applicant said that he had sat outside the stores and counted.  When the Tribunal raised its concern that this would not have allowed the first applicant to calculate the average purchase price, the first applicant appeared to modify his evidence, claiming that he had stood near the cash registers.  The Tribunal found that the first applicant had manufactured this evidence, which raised concerns about the reliability of his claims;

   c)in the two year period prior to his visa application being lodged the first applicant spent a significant number of days offshore (i.e. 197 days).  Although the first applicant claimed that he continued to be involved in the management of the business during his periods of absence, the evidence he provided in support of this contention was not reflective of day-to-day involvement;  

   d)the Tribunal found it concerning that the first applicant did not appear to be aware that the premise’s lease was about to expire; 

   e)the first applicant’s written submissions concerning the problems he had initially identified with the business were far more detailed than his oral evidence;

   f)although the first applicant had provided written evidence of multiple suppliers with whom he claimed to have negotiated on behalf of the business, his oral evidence about those negotiations was unpersuasive and lacking in detail;

   g)in comparison to his written evidence, the first applicant’s oral description of his duties as general manager was lacking in detail.  For example, he provided minimal evidence about how he had built relationships with existing customers, gave vague, limited and unpersuasive evidence about the wholesale arm of the business, and did not discuss his role in reviewing the business’s financial status; and

   h)overall, the first applicant’s oral evidence about his involvement in various aspects of the business’s management was unpersuasive and not reflective of a person who maintained direct and continuous involvement from day-to-day and in making decisions affecting the overall direction and performance of the business.  The Tribunal found that the first applicant’s involvement in the business during the two year period had been minimal and that his written claims to the contrary had been significantly embellished.  It found that the first applicant’s involvement had been limited to investing money in the business, and dealing with some suppliers in Australia and in China.

3. As the first applicant did not satisfy reg.1.11(1)(b), the Tribunal found that he did not meet cl.890.211 at the time of application for the grant of the visa.

THE PROCEEDING IN THIS COURT

1. In their amended application the applicants alleged the following grounds:

   1.The Tribunal failed to consider a document essential to its determination of whether the applicant met Migration Regulation 1.11(1)(b) and therefore Cl.890.211 of Schedule 2 to the Migration Regulations.

   Particulars

   (a)A letter from Ms Vivien Chen, the accountant of the company which operated the applicant’s business.

   2.     The Tribunal failed to complete the exercise of its jurisdiction.

   Particulars

   (a)The Tribunal overlooked, and therefore failed to consider information that it was required to consider, that being: 

   (i)          Information in a letter of Vivien Chen, accountant, dated 30 July 2015.

   (ii)     Information given by the applicant at hearing as to when the lease on the premises of the relevant business was to expire.

   (b)The Tribunal was misled by incorrect interpretation as to the applicant’s evidence of when Xiang Wu Phan left the business. 

   (c)The Tribunal, because of incorrect interpretation, was denied access to information given by the applicant at hearing to the effect that: 

   (i)          He knew of the gross income of the business in 2013-2014.

   (ii)     The answer given by the applicant to the question asked by the Tribunal in an attempt to better understand how he stayed involved in the day to day management of the business whilst overseas.

Ground 1

1. In their first ground the applicants alleged that the Tribunal fell into error by failing to have regard to:

   A letter from Ms Vivien Chen, the accountant of the company which operated the applicant’s business.

   The letter relevantly stated:

   I, Vivien Chen, have been providing accounting and taxation services to Fortune Maker Pty Ltd T/as Crazy Dollar, Shop … since 2003 …

   I am confirming that Mr. Wenyu Li joined Fortune Maker Pty Ltd on 5th January 2011 and became company's shareholder/director and general manager.  He has added a great value to the business by his financial investment in the company, his management skills & leadership since he joined the company.

   Mr. Li has been the primary contact person in my dealing with company's accounting & taxation affairs since he took the management role of the company.  He regularly contacts with us for providing business trading data and discussing company's financial issues with care, reviewing and signing off various documents with the attention to the detail.

   I appreciate Mr. Wenyu Li for his valued assistance in my dealing with company's accounting and taxation affairs.

2. If the Tribunal did fail to have regard to that letter and, broadly speaking, such failure might have affected the outcome of the review, then the Tribunal would have erred:  Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252; Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at 787-788 [25]-[31]; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 127 [96], [97] and 130 [111]; Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at 451 [68]-[70].

3. The Tribunal’s analysis of the first applicant’s involvement in the business was set out in para.61 of its decision record where it relevantly said:

   Overall the Tribunal considers the applicant's oral evidence on his involvement in various aspects of management to be unpersuasive and not reflective of a person who maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.  While it accepts that during the 2 year period he had some involvement in the business it is of the view his written claims about his involvement in the day to day management of the business are significantly embellished.  It has formed the view his involvement was limited to investing money in the business, and dealing with some suppliers in Australia and in China.  He may have spent some time in the shop and he may have suggested the business broaden its range of products and improve the quality but his evidence regarding his introduction of a wholesale arm during the 2 year period is unpersuasive.  The Tribunal does not accept his evidence that he was responsible for supervising staff.  It finds his evidence regarding recruitment to be unpersuasive.  It is not satisfied he was particularly engaged in the business’[s] financial status.  It is not satisfied he was responsible for ensuring tax and entitlements were properly paid.  While he appears to have some awareness of the operations of the business, the Tribunal does not accept that the applicant maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.  …  The Tribunal finds that the applicant's involvement in the business during the 2 year period was minimal. … (emphasis added)

4. The applicants submitted that Ms Chen’s letter was significant to the review because:

   (a)It was evidence to the contrary of the Tribunal's finding that it was not satisfied that Mr Li was particularly engaged with the business' financial status, and/or,

   (b)The Tribunal made findings that Mr Li did have some involvement with suppliers and that he had visited manufacturers in China.  Had it also accepted that, as Ms Chen had written, Mr Li was the primary point of contact for financial matters it may have reached a state of satisfaction that he did maintain, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

5. The applicants submitted that the Tribunal failed to discuss Ms Chen’s letter in its assessment of the evidence before it and that this indicated that her letter had not been considered.

Discussion

1. Although the Tribunal made no express reference to Ms Chen’s letter anywhere in its reasons, it can be inferred that it was aware of its existence.  The letter had been attached to written submissions from the applicants’ advisers which the Tribunal received on 3 August 2015 and from which it essentially quoted in point form at para.24 of its reasons.  One of those points read:

   ·Review financial status and ensure the business operation is within budget; seek advice from accountant and tax agent; ensure tax and staff entitlements are paid on time.

2. At paras.35 to 44 of its decision record the Tribunal summarised the oral evidence which the first applicant had given relevant to the issues which the Tribunal had listed at para.24.  Most relevantly, at para.39 the Tribunal recorded:

   The Tribunal asked the applicant who was responsible for the financial documentation for the business from July 2011.  He said the financial matters were left to the accountant, Vivien Chen. When asked who dealt with her, he said that he did.

3. At para.60 of its reasons the Tribunal summarised the evidence given by the first applicant regarding the various aspects of his alleged involvement with the business which had been listed at para.24.  In para.61 of its reasons the Tribunal made its findings on those matters. 

4. It is quite apparent that Tribunal’s reasoning closely reflects the submissions which the applicants made.

5. The applicants’ allegation and related submissions stress the significance of the written evidence provided to the Tribunal in the form of Ms Chen’s letter.  However, doing so distracts from the real reason why the Tribunal was unpersuaded by their claims, which was that the strength and detail of first applicant’s oral evidence did not match that of his written evidence.  In short, that disparity caused him to be disbelieved.

6. As a consequence, it can be inferred that the detail of documents annexed to written submissions whose claims the Tribunal concluded were “significantly embellished” were of no particular significance to the outcome of the review.  That being so, it was unnecessary for the Tribunal to expressly deal with them and the fact that it did not does not persuade me that it failed to have regard to them.  That is particularly so given that the close relation the Tribunal’s reasons have to the written submissions of August 2015 is strong evidence that the documents attached to them would not have been overlooked.

Ground 2

Failure to consider evidence

1. In the first sub-paragraph of the second ground the applicants allege that the Tribunal failed to have regard to:

   a)the contents of Ms Chen’s letter; and

   b)the first applicant’s oral evidence to the Tribunal concerning when the lease on the business’s shop was to expire.

2. The first of those contentions is not made out for the reasons given in relation to the first allegation of the amended application.

3. In relation to the second, the Tribunal summarised the relevant evidence in para.33 of its reasons as follows:

   The Tribunal noted that the documents the applicant has provided indicate that the lease is due to expire on 31 August 2015.  It asked the applicant about the landlord and what arrangements are being made for renewing the lease.  The applicant said the premises are leased from Fairfield Shopping Centre.  He appeared not to know that the lease was due to expire.  He said that the rent increased by 4% per year.  He said he had no direct contact with the landlord.  When asked why, if it was the case that he had been responsible for the day to day management of the business, he said nothing special had happened.  The Tribunal asked why he had not had contact with the landlord if the lease was about to expire.  He said he had people in the business who talked to the landlord.  The Tribunal asked who it was that managed the relationship with the landlord.  He said it was Wendy Tu.  When asked who she is, the applicant said that she is in charge of the daily stuff.

4. The Tribunal considered this evidence at para.59 of its reasons where it said:

   The Tribunal also finds it concerning that the applicant appeared not to be aware that the premise’s [sic] lease was about to expire.  He knew that the rent increased by 4% per year but said he had no direct contact with the landlord.  The Tribunal notes his evidence that this part of the business is dealt with by ‘Wendy Tu’ who is in charge of the ‘daily stuff’.  While the Tribunal accepts that it is not a requirement that the applicant manage every aspect of the business, it considers the imminent expiry of the lease to be a significant issue and is of the view that it is reasonable to expect that the applicant would have some knowledge of this issue, if it is the case that he maintains direct and continuous involvement in management of the business from day to day.

5. The applicants submitted that in reaching the conclusions expressed in that paragraph, based on its understanding of the evidence as disclosed by the summary in para.33 of its reasons, the Tribunal failed to have regard to the first applicant’s evidence at the Tribunal hearing on 11 August 2015 to the effect that he did know that the shop’s lease was due to expire that month.  In this regard, reference was made to the following passage from the transcript of the hearing:

   MS CONNOLLY:  Who do you lease the premises from

   MR LI:  Fairfield shopping centre.

   MS CONNOLLY:  But who is the lessor?  Who’s the landlord?

   MR LI:  About the lease because when I was there, Xiang Wu Phan sign the lease already.  So I didn't have any direct contact with the landlord.

   MS CONNOLLY:  So have you ever had direct contact with the landlord?

   MR LI:  Because we always have the lease, so I don’t have any direct contact.

   MS CONNOLLY:  You've never had it?

   MR LI:  No, because nothing special happened.

   MS CONNOLLY:  What's the rent?

   MR LI:  Every year it’s different.

   MS CONNOLLY:  Yes, and what is it now?

   MR LI:  You mean this year?

   MS CONNOLLY:  Yes.

   MR LI:  I think less than 230,000, around 230,000.

   MS CONNOLLY:  Do you know how it’s been calculated?

   MR LI:  230,000.

   MS CONNOLLY:  Do you know how the rent has been calculated over the period of the lease?

   MR LI:  Every year I think it will increase by 4 per cent.

   MS CONNOLLY:  Do you know when it expires?

   MR LI:  August 2015.

   MS CONNOLLY:  So your lease is expiring in two weeks and you’ve had no contact with the landlord?

   MR LI:  Well, because the lease is about to expire for the reasons - because of my parents’ health, so I was in China and I also advised them to contact the landlord.

   MS CONNOLLY:  Sorry, I'm not sure what you mean by that.  Could you tell me again.  The lease is expiring in two weeks, but you've had no contact with the landlord.  Can you tell me why if you’re involved in the day-to-day management of the business - why you’ve had no contact with the landlord when the lease is expiring in two weeks?

   MR LI:  I get people in the company to talk to the landlord already.

   MS CONNOLLY:  So who in the company talks to the landlord?

   MR LI:  (Direct) Wendy.

   MR LI:  (Through interpreter) Wendy.

   MS CONNOLLY:  Wendy? What's Wendy's surname?

   MR LI:  Tu, T-u.

   MS CONNOLLY:  What's her role?

   MR LI:  In charge of the daily stuff inside of the shop.

   MS CONNOLLY:  So she's in charge of the daily stuff, for example dealing with the landlord about a lease that's about to expire in a couple of weeks?

   MR LI:  Yes, supposed to be I should be in charge of that, but because of my parents’ health, so I couldn’t do it and I just communicated with her over the telephone.

   MS CONNOLLY:  It’s a fairly significant aspect of your business whether you will be able to stay in those premises after two weeks.

   MR LI:  (Direct) Mm.

   (emphasis added)

6. The applicants’ argument, as expressed in their additional written submissions, was that:

   The [first] applicant gave clear evidence of when the lease on the business premises was to expire (transcript p. 25).  The Tribunal, at CB 189 [33], when describing the evidence given at hearing, stated that, “He appeared not to know that the lease was due to expire”, and at CB 193 [59] expressed it concerning that, “the applicant appeared not to be aware that the premise’s [sic] lease was about to expire[”].  It considered that to be a significant issue.

7. When considering this argument, particular regard should be had to how the Tribunal expressed itself.  Specifically, it referred to the impression given by the first applicant as a witness, not to the words he used in his evidence.  In that connection, considering the detail and persistence of the Tribunal’s questioning of the first applicant, I do not accept the implication in the applicants’ allegation that the Tribunal forgot or failed to have regard to what the first applicant had relevantly said at the review hearing, namely that the lease was to expire later that month.  For that reason, the Tribunal’s comment regarding the impression given by the first applicant must relate to his demeanour at the review hearing and, presumably, also be a comment on what he had done in relation to that approaching and critical deadline, which was essentially nothing. 

8. The Tribunal’s expression of its assessment of the first applicant leaves something to be desired but for the above reasons I am not persuaded that it did not consider his evidence concerning the expiry of the shop’s lease.

Interpreter errors

1. The applicants also alleged, by implication, that they had been denied the real and meaningful hearing implicitly guaranteed to them by s.425 of the Act on the basis that:

   a)the interpreter at the Tribunal hearing had made translation errors which were of sufficient seriousness that effective communication between them and the Tribunal was adversely affected; and

   b)the Tribunal might have reached a different decision on the review had effective communication been maintained at all times.

Mr Xiao

1. A number of instances of material interpreter error were advanced.  The first concerned the continued involvement of an earlier shareholder in the business, a Mr Xiang.  Relevantly, the transcript of the Tribunal hearing records:

   MS CONNOLLY:  Right, okay. So when did you commence - does Xiang still work there?

   MR LI:  (Direct) Yes.

   MR LI:  (Through interpreter) Yes.

   MS CONNOLLY:  Right. Do you still share the management of the business?

   MR LI:  Yes.

   MS CONNOLLY:  Was there a time when you started managing the – or being directly involved in the day-to-day management of the business?

   MR LI:  Direct management, I think I'm always involved in that.

   MS CONNOLLY:  So you’re saying that was from January 2011?

   MR LI:  Yes.

   …

   MS CONNOLLY:  When did Wendy join you?

   MR LI:  1 July 2014.

   MS CONNOLLY:  And what's her title?

   MR LI:  I think also like director.

   MS CONNOLLY:  She's also a director, is she?  Does she have shareholdings?

   MR LI:  Well, on this 30 January 2015, she bought Xiang Wu Phan's shares.

   MS CONNOLLY:  On 3 January 2000 and - - -

   INTERPRETER:  30 January.

   MS CONNOLLY:  30 January?

   INTERPRETER:  Yes, 2015.

   MS CONNOLLY:  She bought - - -

   INTERPRETER:  Xiang Wu Phan.

   MS CONNOLLY:  So he's not there any more?

   MR LI:  That's right.

   MS CONNOLLY:  Right.  Because I asked you before if he was still there and you said he was.

   MR LI:  No, just not (indistinct)

   MS CONNOLLY:  When did he leave?

   MR LI:  Technically, he wasn't there from 2014.

   MS CONNOLLY:  Because I said, “Do you still share the management with him?” and you said “yes”.

   MR LI:  No, I was talking about previously.

   (emphasis added)

2. The applicants adduced evidence from an expert interpreter who relevantly deposed that the Tribunal’s question:

   Right, okay. So when did you commence - does Xiang still work there?

   was misinterpreted to the first applicant as:

   Right, okay.  Did Xiang still work there?

3. It was submitted that there had in fact been no inconsistency in the first applicant’s evidence regarding when Mr Xiang worked at the business and so any perception that there was, was erroneous.  Referring to the fact that the delegate’s decision was affirmed because the Tribunal did not believe the first applicant, the applicants submitted that a perception of inconsistency regarding Mr Xiang would have added to the Tribunal’s concerns regarding the first applicant’s credit and so may have affected the outcome of the review adversely to them.

4. No particular part of the Tribunal’s reasons was identified as providing support for that contention, nor is one apparent, with all respect to counsel. It seems that this exchange did not form the basis of any finding by the Tribunal.

Gross income

1. The next interpretation issue concerned the first applicant’s evidence regarding the business’s income.  The transcript records the following exchanges:

   MS CONNOLLY:  … So in the 2013-2014 financial year, what was the gross income?

   MR LI:  You mean the gross income?

   MS CONNOLLY:  Okay, the trading income - the total trading income.

   MR LI:  And for 2013, I think less than 900,000, around 880,000.

   MS CONNOLLY:  For 2013-2014, 880?

   MR LI:  No, that’s 2012 to 2013.

   MS CONNOLLY:  In the last year that you did - that you have the figures, the 2013-2014 financial year, what was the trading income?

   MR LI:  Maybe 780,000.

   MS CONNOLLY:  So it’s gone down.

   MR LI:  Yes.

   MS CONNOLLY:  Why is that?

   MR LI:  It’s hard to say, got less customers and also because my parents were sick, so I stayed in China for a long time.  It’s hard to say, but I got less customers and also doing the less, sometimes is good, sometimes is bad and also didn’t continue with the wholesale.  It was tough to continue.

   (emphasis added)

2. The expert interpreter’s evidence was that the first applicant’s response to the Tribunal’s question regarding the gross income for 2013-14 was incorrectly translated and he had in fact said:

   In 2013, it was over 1000.  Gross profit, right?  I know.  It was about 440K. 

3. The applicants submitted that the first applicant’s evidence on this issue had been important to the Tribunal’s understanding of the business’s finances.  Why they contended this was so was not explained and the Tribunal’s reasons do not suggest that this was the case.

Managing from overseas

1. The final translation inconsistency concerned the first applicant’s evidence regarding how he maintained his close involvement in the day-to-day management of the business even though he was often in China.  The following passage from the transcript of the Tribunal hearing was referred to in this connection:

   MS CONNOLLY:  The delegate was concerned that you had spent so many days offshore and he or she wasn’t satisfied that you could have been involved in the day-to-day management of the business, given that you were offshore for 197 days in two years.  Now, I know why.  You’ve said that you were overseas dealing with suppliers and that your parents were sick.

   MR LI:  Yes.

   MS CONNOLLY:  But that may not adequately address the issue that you weren’t here to be involved in the day-to-day management of the business and that's relevant with respect to the way you have described the role.  You have described the role as supervising and managing the people, serving customers, cleaning, arranging products, recruiting and training, paying attention to safety.  Now, those things, I may form the view, require a person to be present. So while I understand why you were away, you’ve said why you were away, what I may not understand yet is how you stayed involved in the day-to-day management of this business in the way you’ve described the general manager’s role if you weren’t here.

   MR LI:  Well, I think the daily management, that means I have to implement regulations for the employees so that they can carry out and (indistinct) shop, besides myself, will still go to other shareholders.  So I would always – the regulations in the business goes to other people that could help and also I was purchasing for this, so it's really important regards to the profit of the business management because to run a business, of course, you want to maximise your profit.  So (indistinct) those daily management duties while I was away because everybody in the shop, they can supervise each other and also I would make telephone calls to make inquiries.

   (emphasis added)

2. The applicants submitted that the translation of the first applicant’s response to the Tribunal’s query regarding his running of the business remotely was manifestly inadequate.  In making that submission they relied on the evidence of the expert interpreter who deposed that the evidence in bold type above should have been rendered in English as:

   When I was away, those two people would help the business to implement the regulations.  Because purchasing stock by me has direct influence to the shop's profit as the main and the most important purpose for the shop is profit.

3. The applicants submitted that the less than totally coherent translation could have cast doubt on the Tribunal’s perception of the first applicant’s knowledge of the business.  However, the Tribunal’s dissatisfaction as to the first applicant’s evidence did not arise out of matters such as this but out of his inability at the hearing to substantiate the particular claims which had been made in the applicants’ written submissions.  The Tribunal did not base its decision on vague impressions but on specific, identified inadequacies in the first applicant’s evidence.

Generally

1. The applicants submitted that the interpreter’s errors identified by them had misled the Tribunal as to the first applicant’s involvement in the business.  However, given that the Tribunal’s reasoning was closely linked to the particular submissions made by the applicants in support of their application for review, neither individually nor in combination could it reasonably be concluded that any of these interpretation errors might have had a material effect on the outcome of the review.  The Tribunal was adversely impressed by a large and significant concern, namely the general impression given over a broad range of issues which the applicants themselves had raised, that the first applicant could argue a large case on paper but could not back it up when he was put to the test at the Tribunal’s hearing.  The identified interpretation issues did not bear on that concern.

2. For all these reasons such interpreter errors as occurred at the Tribunal’s hearing have not been shown to have possibly had any material effect on the outcome of the Tribunal’s review and thus to have caused the Tribunal’s decision to be affected by jurisdictional error.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  22 May 2019