Liang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 263
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 263
File number(s): SYG 3833 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 13 April 2022 Catchwords: MIGRATION - Business Innovation Investment visa – whether case of mistaken corporate identity - general unacceptability to the Australian community of environmental pollution – scope of what “involvement” involves Legislation: Migration Regulations 1994 (Cth) Cases cited: CRU18 v Minister for Home Affairs (2020) 277 FCR 493
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 9 February 2022 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: WB Legal Pty Ltd Counsel for the Respondent: Mr T Liu Solicitor for the Respondent: Sparke Helmore ORDERS
SYG 3833 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIANLUN LIANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.The application filed on 12 December 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Introduction and background
By an application filed in this Court on 12 December 2017 the applicant, Ms Liang, seeks judicial review of a decision of a delegate of the Minister (delegate) made on 8 November 2017 refusing to grant her a Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visa (visa).
The applicant is a citizen and resident of China who, on 27 September 2016, lodged an online application for a visa in the “Significant investor” stream (Court Book (CB) 1-18). This stream relevantly requires that, as at the time of decision, the applicant has made a “complying significant investment”, within the meaning of reg 5.19C of the Migration Regulations 1994 (Cth) (Regulations), of at least $5,000,000. In the “Employment history” section of the application form (CB 9) the applicant said that she had been employed since 1999 as a Director of Handing Metal Products Co Ltd (Handing) in China.
On the same date that the visa application was made the applicant’s solicitor also provided a written submission (Supplementary Court Book (SCB) 1-4), an index to supporting documents (SCB 5-7) and the documents themselves (SCB 8-390). The supporting documents included a “Source of funds and transfer statement” (source of funds statement) in English, signed by the applicant and dated 27 September 2016 (SCB 94-100).
By the source of funds statement the applicant said that she had acquired her funds for the complying significant investment from several businesses with which she and her former husband, Mr Li Hegao, had been involved, from real estate including properties owned with Mr Li and Handing, from securities trading, from her divorce settlement with Mr Li and from a term deposit into which she had transferred her funds from share trading in 2015. The applicant said that the latter funds were being held in a Bank of China account to be transferred for her investment when invited by the respondent (SCB 99).
Additionally, the applicant’s source of funds statement at [9] (SCB 95) said that she and Mr Li had established Handing in 1999, that it had been a manufacturer of “domestic electronics and lighting” and that it was their “largest and most successful business venture”.
The index to the documents which was entitled “Document List” (see [3] above) and which accompanied that written submission included the following under a heading “B. SOURCE OF FUNDS” (SCB 5, emphasis in original):
A signed declaration on source of funds and transfer statement
Funds from business
Item 1.1 Certificate of deregistration Kuicheng Hardware Trading Company
Item 1.2Certificate of deregistration Kuicheng (Palm City) Hardware Manufacturing Company
Item 1.3 Certificate of registration Jiangmen Handing Metals Limited
Item 1.4 Tax records for Jiangmen Handing Metals Limited
The actual documents which are where Items 1.3 and 1.4 should sequentially fall (noting that they were not marked with that numbering) related to a company called Jiangmen Xinhui Kaide Metal Products Co., Ltd (Kaide). As such the documents which were provided to the delegate were:
(a)the document at Item 1.1 (SCB 105-106) was dated 10 September 2005 and entitled “Current situation of the enterprise: establishment registration” (Document 1.1). It stated that Kaide was established on 6 September 1999, and it described the “Business scope” as coloured metals processing, pressing plumbing hardware products, lightings, household appliance parts, electronic components and electroplating; real estate developing, and the sale of commercial residential buildings. Two “investors” were identified in the documents being the applicant and her husband;
(b)the document at Item 1.2 (SCB 106-107) was a “Business License” for Kaide dated 10 September 2005 (Document 1.2) describing it as a limited liability company established on 6 September 1999, stating Kaide’s Registered Capital was RMB 10 million yuan and describing the business scope in similar terms to Document 1.1;
(c)the document at Item 1.3 (SCB 109-110) was a “Certificate of Tax Payment” issued by the Local Taxation Bureau of Xinhui District, Jiangmen City, Guangdong Province, on 5 March 2014 (Document 1.3), which listed taxes paid by Kaide from 1 January 2005 to 31 December 2013; and
(d)the document at Item 1.4 (SCB 111-112) was a “Certificate of Tax Payment” issued by the Jiangmen City, Xinhui District Bureau of the State Administration of Taxation on 6 March 2014 (Document 1.4), certifying that Kaide had paid a total of RMB 14,433,935.66 in tax from March 2000 to December 2013.
On 4 February 2017 the delegate emailed a letter to the applicant (CB 21-24) requesting further information, including bank records to show the source of her funds for the investment (CB 21). The applicant’s solicitor responded on 10 February 2017 (CB 29-30) seeking clarification of the details/documents requested by the delegate, to which the delegate responded on 17 February 2017 (CB 29).
On 20 February 2017 the applicant’s solicitor sent the applicant’s substantive response to the delegate. This included a submission (CB 36-38) and a large number of bank and other financial records (CB 36-185). There was no reference to Handing or Kaide in the correspondence or financial records.
On 28 July 2017 the delegate invited the applicant (via her new solicitor (CB 201-202)) to respond to information which was relevant to the applicant’s satisfaction of cl 188.211 of Schedule 2 to the Regulations. In particular the information was whether the applicant was able to show that she did not have a history of involvement in business or investment activities that were “of a nature that is not generally acceptable in Australia”.
The letter relevantly stated that there was evidence to show that, on 19 June 2016, Kaide had been convicted by the Guangdong Province, Jiangmen City, Xinhui District People's Court of violating state regulations by discharging toxic chemicals and seriously polluting the environment. The delegate said that:
…According to the judgement dated 18/11/2016 handed down by the Court, the monitoring of electroplating wastewater discharge and related processing facilities of the Company were deficient, but despite these being known issues to the Company electroplating wastewater were [sic] still being discharged down to the rivers in the production process.
…
While you were not prosecuted in your own name as was your ex-spouse who was the legal representative of the Company at the time, according to the information before me, including information from the website of the State Administration for Industry and Commerce and the business registration documents submitted with your application, you had been the owner of the Company with majority shareholding of 80% during the years 2013 to 2016. Furthermore, pursuant to your own declaration you had been the Director of the Company from January 1999 to September 2016, responsible for directing the policies and operations of the Company and providing overall direction and management of the Company.
The delegate suggested that business activities causing such pollution would generally be unacceptable to the Australian community and that “[a]s a major owner and director of the Company responsible for its policies and operations, you cannot be said to be without knowledge of these business activities…” (CB 202).
On 19 September 2017 the applicant’s solicitor provided a written submission in response (CB 208-211) (September submission) and additional supporting documents (CB 208-237).
By the September submission the applicant said that:
(a)she had attended shareholders' meetings and voluntarily provided assistance to her former husband “in some simple tasks as a wife until their marriage broke down in April 2015” (emphasis in original);
(b)information provided in the employment section of the application form was incorrect, because she had never been employed by Kaide; and
(c)the nature of the business activities of Kaide was to produce and sell metal products, the applicant had invested in the company as a shareholder but had no knowledge of any waste processing issue. The applicant also said that she did not have any power to direct the operation of Kaide or play a role in any business activities relating to the conviction.
At the conclusion of the September submission was a further “Attached Document List” (CB 209-210), indexing the documents (CB 212-237), most of which were untranslated from Chinese, although an English language list of the documents was set out in the delegate’s decision (CB 244).
The delegate’s decision
At the commencement of the delegate’s reasons for decision (CB 241), the delegate says:
You submitted that incomes from a number of businesses had provided the capital necessary for your investments in properties and securities which in turn generated rental incomes and profits that comprised the sources of the nominated funds. You advised your ex-husband LI Hegao had established two businesses which had since been deregistered, and in 1999 you and LI Hegao had established Jiangmen City Xinhui District Kaide Metal Products Co., Ltd (“the Company”). Some business and tax records of the Company were submitted as supporting evidence.
The delegate referred to the letter of 28 July 2017 and the September submission and said (at CB 243):
…pursuant to your own declaration you had been a Director of the Company from January 1999 to September 2016, responsible for directing the policies and operations of the Company and providing overall direction and management of the Company [defined by the delegate at CB 242 as Kaide].
According to the applicant, the operative part of the delegate’s decision is as follows (at CB 245, applicant’s emphasis retained):
In considering whether the requirement of clause 188.211 is met, I have given regard to the information and evidence provided to date. My findings are as follows:
(a) There exists publicly available information which indicates the Company had been convicted of having violated state regulations, discharged toxic chemicals and seriously polluting the environment. Whilst you submitted the conviction was only based on a sample and the Company had been compliant with relevant environmental regulations for a long period prior to that, the documents provided do not support this claim and moreover the judgement had noted that the Company did not dispute the charges laid against the Company;
(b) You had been the major owner with 80% shareholding and a director of the Company responsible for directing its policies and operations during the time when the breaches were found to have occurred. Whilst you submitted you had been an investor only with no involvement in the Company, this is contrary to your own declaration submitted at the time of application in which you advised you had been a Director of the Company from January 1999 to September 2016, responsible for "directing the policies and operations of the Company and providing overall direction and management of the Company". Consistent declaration was made in your form 80 under 'employment' where you also submitted to have been the director of the Company since January 1999, the duties noted being "directing the policy and operations, authority or institution for the achievement of policy objectives, increased profit and market control". Given your own declarations in both the application form and form 80, I am unable to accept that the submission that you had incorrectly input the employment information in your application form as subsequently submitted. I am also unable to give weight to the statement from WU Qiaoguang that you have had no involvement in the Company from December 2010 to March 2017 given he had only became the legal representative of the Company recently;
(c) That business activities producing environmental pollution, particularly pollution to the extent as described by the Court, would be business activities that are of a nature that would generally be unacceptable to the Australian community, were the business to operate in Australia; and
(d) That as the major owner and a director of the Company responsible for its policies and operations during the relevant periods when the breaches occurred you could not be said to be without knowledge and be negated of involvement in the business activities of the Company.
On the basis of the foregoing analysis, I am unable to make a finding that you do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. Therefore you have failed to satisfy clause 188.211.
Accordingly the delegate refused to grant the applicant a visa.
Application to this Court
By an application to show cause filed on 12 December 2017 the applicant seeks review of the delegate’s decision and raises the following ground of review:
1.The Minister made a finding concerning a critical step in its ultimate conclusion that was not open to the Minister on the evidence, being the finding that the Applicant submitted documentary evidence that she had been a Director of Jiangmen City Xinhui District Kaide Metal Products Co., Ltd (Company) and was responsible for "directing the policies and operations of the Company and providing overall direction and management of the Company.
Particulars
1) On 27 September 2016, the Applicant lodged an application for a Business Skills (Provisional) (class EB) Business Innovation and Investment (subclass 188) visa via ImmiAccount, which is a system adopted by the Minister for online visa applications;
2) On the electronic visa application form, the Applicant in a section titled "Employment History" declared that she had been a Director of Handing Metal Products Co., Ltd, for a period from the 8th January 1999 to the 21st September 2016, with duties described as "Directs the policy and operations of a company, authority or institution for the achievement of policy objectives, increased profit and market control. Provides overall direction and management of enterprises, including personnel, technological resources and assets";
3) On the Form 80 - Personal Particulars for Assessment Including Character Assessment, Part F - Employment Question 19, the Applicant declared she had been a Director of Handing Metal Products Co., Ltd, for a period from January 1999 to current, with duties described as "Oversight and responsibility for all aspects of business operations";
4) The Minister found that the Applicant in her own declaration submitted at the time of application in which the Applicant advised she "had been a Director of the Company from January 1999 to September 2016, responsible for 'directing the policies and operations of the Company and providing overall direction and management of the Company"', at page 5 subsection 6 of the Minister's Decision. The Company referred to was Jiangmen City Xinhui District Kaide Metal Products Co., Ltd, at page 2 paragraph 5 of the Minister's Decision;
5) The Minister found that consistent with the above noted findings in (4), the Applicant in her form 80 under 'employment' where she "also submitted to have the director of the Company since January 1999, the duties noted being 'directing the policy and operations, authority or institution for the achievement of police objectives"', at page 5 subsection b of the Minister’s Decision. The Company referred to was Jiangmen City Xinhui District Kaide Metal Products Co., Ltd, at page 2 paragraph 5 of the Minister’s Decision;
6) The findings in (4) and (5) were not open to the Minister on the evidence and were therefore affected by jurisdictional error.
7) The findings in (4) and (5) were critical in reaching the ultimate conclusion that the Applicant does not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia, which was thus affected by jurisdictional error.
At hearing the Court Book filed on 9 February 2018 and Supplementary Court Book filed on 5 October 2018 were received as evidence and collectively marked “Exhibit 1R”.
Each of the applicant and the Minister filed pre-hearing submissions and made oral submissions by their Counsel at the hearing on 9 February 2022, which took place using the Microsoft Teams online platform. I have been assisted by those submissions.
Applicant’s contentions
By each of the “Employment history” section of the visa application form (CB 9) and in the applicant’s Form 80 (CB 359), the Company to which the applicant referred was Handing, not Kaide.
The applicant says there was no basis upon which the delegate could have made any of the following findings:
(a)that pursuant “to your own declaration submitted at the time of application you had been a Director of [Kaide] from January 1999 to September 2016, responsible for “directing the policies and operations of the Company and providing overall direction and management of the Company””;
(b)that “You had been…a director of [Kaide] responsible for directing its policies and operations during the time when the breaches were found to have occurred”;
(c)that the applicant’s submission that she had only been an investor in Kaide with no involvement in that company was “contrary to your own declaration submitted at the time of application in which you advised you had been a Director of [Kaide] from January 1999 to September 2016, responsible for “directing the policies and operations of the Company and providing overall direction and management of the Company’”; and
(d)that a “…declaration was made in your form 80 under 'employment' where you also submitted to have been the director of [Kaide] since January 1999, the duties noted being "directing the policy and operations, authority or institution for the achievement of policy objectives, increased profit and market control".
The applicant says that the delegate made a “simple but critical” error of fact in this case, by wrongly considering that the applicant had stated she was previously a director of Kaide, which had been convicted of a breach of environmental regulations.
The applicant says that, as pointed out by her then solicitors to the delegate, she had never claimed to have been a director of Kaide. The applicant says that by her application and her Form 80 she had only claimed to have been a Director of Handing, and that in relation to Kaide she was only ever a shareholder.
The applicant submits that an error of fact will not necessarily amount to jurisdictional error simply because of that error, citing CRU18 v Minister for Home Affairs (2020) 277 FCR 493 where at [31] Wigney, Jackson and Snaden JJ found:
…More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality…that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).
In this case the applicant says that the erroneous identification of her as being a director of Kaide was critical to the delegate’s findings when it referred to the applicant as a director of Kaide (which had knowledge of, and responsibility for, the environmental offences) and using the applicant’s own language regarding Handing, that her duties involved directing the policies and operations and providing overall direction and management of the company. By contrast, the applicant says that as a mere shareholder of Kaide, even with a majority stake, she would not have had such duties and responsibilities.
The applicant says that the decision cannot stand by reason of the delegate’s critical error of fact and that it must be set aside.
Minister’s contentions
The Minister summarises the applicant’s allegation of error as being that the delegate made a factual error in the “identification of the applicant as having been a director of Kaide”. The Minister says that the Court should not accept the contention that the delegate made the alleged factual error, or that, were the asserted error to be established, that it goes to jurisdiction.
The Minister relies on a broader part of CRU18 including [29]-[30], where the Full Federal Court at [29] affirmed the principle that:
An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: NADR v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 167, [9] (Heerey, Nicholson and Selway JJ). In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ), this court observed (at 16 [53]) that:
…mere factual error by [a decision maker] will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.
The Full Federal Court went on (at [30]) to refer to McHugh J’s decision in Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542 (at 548 [35]) in relation to the proposition that “[a] factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact.”
The Minister says that the asserted error in this case does not concern a jurisdictional fact because the applicant contends that there was “no basis” for the delegate’s finding that the applicant was a director of “the Company”. Therefore, in substance the Minister contends that the applicant must establish that the asserted error of fact demonstrated (see CRU18 (supra) at [31]):
unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ)).
The Minister submits that the material before the delegate provided a logical factual basis for finding that the applicant was a director of the company which was convicted of environmental offences. That is because the September submission (CB 208-210) adopted the same definitions as the delegate throughout.
In particular, the Minister says that at the commencement of the September submission the applicant defined “Kaide” as “the Company” and went on to say that “the information provided in the employment section in the application form is incorrect” and that the applicant wished to correct that answer to record that she “has never been employed by the Company as a Director or other position” (Minister’s emphasis retained). The use of the defined term “the Company” (which was earlier defined in the submission to mean “Kaide”) in the context of the purportedly “incorrect” answer which the applicant gave “in the employment section in the application form” is said by the Minister to link the information in the application form to Kaide as the relevant “Company”.
Further the Minister contends that it is significant that the September submission did not suggest the delegate referred to the wrong company in their invitation to comment by which the adverse information about Kaide was put to the applicant. Instead, the September submission supported the view that the reference to “Handing” was the same as the delegate’s reference to “Kaide”, and that the only thing the applicant wished to correct was not the fact of her association with that particular entity from 1999 to 2016 but the nature of her association, namely the answer only suggested that she incorrectly recorded that she was a “director”. The Court’s attention is drawn to the following statement as well as the supporting documents, where the applicant attempted to emphasise that she was merely a “shareholder of the Company…[and] therefore, did not play a role in any business activities in the said conviction.”
The Minister says that further support for the proposition that Kaide and Handing were in fact the same company (and that both the applicant and the delegate proceeded upon this common understanding) comes from the applicant’s source of funds statement (at SCB 94-100) and the accompanying supporting documentation submitted with it.
In short, although paragraph [9] (SCB 95) of the applicant’s source of funds statement refers to “Handing” in relation to the company records which form Documents 1.3 and 1.4, the translated documents themselves only refer to Kaide and do not mention Handing at all. All the material before the delegate is said to support the view that Kaide and Handing were in fact the same company, and that the applicant’s references to her involvement in Handing and Kaide were to the same thing.
In the circumstances, the Minister says it was open to the delegate to find as it did that the applicant had not incorrectly entered the employment information and therefore to reject the applicant’s submission that she “had been an investor only with no involvement in the Company”.
The Minister says that given the applicant’s own use of the defined term “the Company” in her September submission which was defined only as “Kaide”, it was open to the delegate to find that the applicant was involved in directing that company.
Finally, it is contended for the Minister that even if I were to find that the delegate made the asserted factual error, the applicant has not established that the error would be material in the sense articulated in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. In particular, this is said to be because the applicant does not explain how a different finding by the delegate could realistically have resulted in a different decision in circumstances where a number of other adverse but unchallenged findings were made.
Rather, the Minister says the Court should find that the applicant has not established materiality by discharging her onus, citing MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [39].
Resolution
The applicant’s sole ground of review asserts that the delegate erred when finding that the applicant submitted documentary evidence that she had been a director of Kaide. However, an available reading of the delegate’s reasons discloses that the finding in relation to the applicant’s involvement with Kaide was not one whereby there was mistake or confusion of the evidence which led to an error relating to which company the delegate intended to refer.
Rather than a misunderstanding of the evidence before it, by defining Kaide as “the Company” the delegate specifically sought to make a finding that Kaide and Handing were one and the same for the purposes of the applicant’s claimed involvement, such that her claims in relation to Handing and her role with that company, did in fact pertain to Kaide.
That this could have been made more clear and would have benefited from an express finding, and not merely a defined term, is undeniable.
It is not for this Court to conclude whether or not Handing and Kaide were in fact the same company, but (“blurriness” of expression aside) only whether it was open to the delegate to conclude that the applicant was involved with Kaide in the way that the delegate did, based on the material available, and if not, whether the resulting error was material.
As noted above, the visa application form submitted in relation to the applicant provided her most recent role as being Director of Handing Metal Products Co., Ltd from 8 January 1999 to 21 September 2016 with duties which the applicant said were:
Directs the policy an operations of a company, authority or institution for the achievement of policy objectives, increased profit and market control. Provides overall direction and management of enterprises, including personnel, technological resources and assets.
The first sentence of the above duties description was also resubmitted as part of the applicant’s Form 80 (CB 359).
As part of her visa application, the applicant made a declaration that she did not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia, and that nor did her spouse or de facto partner have such a history (CB 15). A written submission was made for the applicant on the same date as the visa application which included a statement that its purpose was to (inter alia) “Confirm that the Applicant have [sic] not been involved in an unacceptable business or investment activities” (SCB 1).
As noted above at [6], the index to the documents accompanying the visa application included (inter alia) Documents 1.1 to 1.4. A review of the documents which were actually provided reveals that each of the Chinese language versions of Documents 1.1 and 1.2 have a handwritten annotation of this numbering in the top right hand corner of each (or at least as they appear in the SCB (see SCB 102 and 104 respectively)). Counsel for the applicant says this is a matter of moment because when one examines the document at SCB 106 (which should be Document 1.3) and the documents at SCB 108 and SCB 110 respectively, they do not bear this handwritten notation. From this, the Court is urged to infer that the Kaide documents were inadvertently submitted in place of the equivalent documents pertaining to Handing.
There is no evidence before the Court other than a statement in the applicant’s written submissions (repeated again by Counsel at the hearing) that the inclusion of these documents was inadvertent. There was never any suggestion made to the delegate that these were not the intended documents. When the delegate wrote to the applicant to raise the issues pertaining to Kaide there does not appear to ever have been an attempt by, or for, the applicant to replace the Kaide documents with equivalent ones relevant to Handing. There is also no evidence before the Court that such documents existed.
What is also a matter of moment is that a review of the documents reveals that they are largely consistent with their descriptors in the document list (see [3] and [6] above) as contextualised by the applicant’s source of funds statement.
In her (signed) source of funds statement the applicant stated that:
9. …To date Handing is our largest and most successful business venture with a working capital of RMB10M. As the legal owner (please refer to certificate of registration, item 1.3 have drawn emoluments from Handing over time. Handing is a principled manufacturer and responsible corporate citizen having paid over RMB14M in tax since March 2003 (please refer to tax records, item 1.4).
Paragraph [9] of the source of funds statement is the only paragraph which refers to those documents.
Turning to the documents themselves, the document at SCB 107 indicates that the registered capital of Kaide is RMB 10 million yuan. Similarly, the Certificate of Tax Payment at SCB 111 makes reference to a sum of RMB14,433,935.66 paid between March 2000 and December 2013.
Counsel for the applicant says, and I accept, that there are some discrepancies in the tax document as to the dates as compared to the narrative in the source of funds statement. Counsel for the applicant further says, and I accept, that working capital and registered capital should not necessarily be considered to be the same thing.
However, the relative consistency of the content of the source of funds statement with the content of the documents to which it cross-referred and the content of the documents at SCB 107-111, is not insubstantial.
Further, the applicant’s own source of funds statement claimed that Handing was (together with her former husband) their “largest and most successful business venture”. Applying an everyday meaning to those words, it is open to infer that any other business venture of the applicant’s would have been smaller and less successful, which would mean they would have less capital and pay less tax. In those circumstances, that the documents provided as being Documents 1.3 and 1.4 largely matched the amounts claimed in relation to Handing, yet apparently pertained to Kaide, is another basis upon which it was open to the delegate to conclude that the documents provided pertained to one company. This is something which later, when commenting on the Handing versus Kaide dichotomy, the applicant did nothing to dispel.
When Kaide’s prosecution for pollution offences was put to the applicant for comment in the context of what this might mean for her ability to satisfy cl 188.211 of Schedule 2 to the Regulations, the applicant did not assert that there was a misconception on the part of the delegate which consisted of conflating the corporate entities of Handing and Kaide, as is now alleged on review. Rather, the applicant (who was legally represented at all relevant times) sought to redefine her role at Kaide potentially so that the previous job description she had given in her visa application (referencing Handing) (CB 9) was not sheeted home to her.
It was a curious shift, but one which speaks more to the applicant having accepted the delegate’s premise (later reflected by her own adoption of the definition “the Company” as meaning Kaide) rather than an attempt to clarify what on the applicant’s case would have been a simple misunderstanding which would have been as readily apparent at that juncture as it was rectifiable. There was no mention of Handing in the September submission, nor in fact ever again.
Each of the parties referred me to CRU18 (supra) and seem largely agreed as to the impact of the principles there summarised. The parties seem to agree that a mere factual error, without more, will not constitute a jurisdictional error. What is urged on the Court in the instant case is that this is one such case where there is something more. The error is described as being a “simple but critical error of fact”, although I do not understand the applicant to be suggesting the error pertained to a jurisdictional fact.
Developed in oral argument by Counsel, the applicant appears to be urging on the Court that the error was one of legal unreasonableness which falls within one of the non-exhaustive examples given by the Court in CRU18 as being a consequence of an error which may vitiate the decision depending on the facts and circumstances of the case: see CRU18 at [31] and also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [6] per Allsop CJ.
However by contrast, in this case it is possible to comprehend how the delegate arrived at the decision.
The applicant set out her working history and claimed that she was a director of Handing. In support she submitted documents said to pertain to that company which disclosed similar content but referred to Kaide. Investigations into Kaide revealed a less than exemplary environmental record, which was put to the applicant for comment. When asking the applicant to comment, the delegate defined the Company as being Kaide. The applicant did not dispute this and rather than seeking to clarify Handing and Kaide as two separate entities, instead distanced herself from a directorial role and cast herself as a shareholder who did not have knowledge of the Company’s affairs, despite a majority stake holding.
Accordingly, it was open to the delegate to find as she did at CB 245 at (a) and (b). Against the background of the claims the applicant made, the documents the applicant voluntarily submitted in support and her response to the delegate’s invitation to comment, none of the delegate’s findings lacked an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ).
The findings of the delegate in relation to the applicant and the applicant’s involvement with Kaide were open and even if they were an error of fact, do not possess any additional quality which would give rise to an error.
Even if I were wrong about the Tribunal having erred, such an error would not be material.
It is well established that the applicant bears the responsibility for establishing materiality: see MZAPC (supra) at [2] and [39].
The Minister submits that the applicant has failed to discharge this onus and establish that the error, even if it existed, could realistically result in a different decision. I agree.
The written submissions for the applicant state that the delegate repeatedly referred to the applicant’s role of Director as involving knowledge of and responsibility for the environmental breach, citing the applicant’s words (in relation to Handing) that such duties included directing the policies and operations of Kaide, and providing overall direction and management of the company. The final submission for the applicant was that “A mere shareholder - even a majority shareholder – would not have had such duties and responsibilities”.
Clause 188.211 of the Regulations provided as follows:
The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
In my view, this language of “involvement” sets a lower bar than direct knowledge of, or the ability to direct, policy and operations of a company. Similarly, the fact that the criterion also directs itself:
(a)not just to specific involvement in a business, but also to the nature of a person’s investment activities;
(b)and extends as far as the activities of their spouse without requiring that there be an element of knowledge on the part of the applicant; and
(c)can involve historic matters and not just current business and investment activities;
suggests that the scope of any involvement may be arm’s length indeed.
So understood, the delegate’s ultimate findings that the applicant was “the major owner with 80% shareholding” of the Company and that “business activities producing environmental pollution, particularly pollution to the extent described by that Court, would be business activities that are of a nature that would generally be unacceptable to the Australian community” would remain extant even absent a finding that the applicant was a director of Kaide instead of Handing.
Applying a counterfactual analysis to the matter and as against the low bar established by cl 188.211, I am not persuaded that the known historical facts in this case (which the Minister says are almost entirely adverse to the applicant) could have resulted in the delegate reaching a different view about her involvement in business or investment activities that would be generally unacceptable to the Australian community based on her admitted investment involvement with Kaide.
Accordingly, even if the finding regarding the applicant’s direction and control of Kaide was in error, it was not material and accordingly, there is no jurisdictional error present in the instant case.
Accordingly, the application will be dismissed.
I will hear the parties on costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 April 2022
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