Tian v Minister for Immigration & Multicultural Affairs

Facts 4 Mr Tian, who is a citizen of the People's Republic of China, arrived in Australia on 7 May 1997 on a Business (Short Stay) (Class UC) subclass 456 visa. Australia ML International Company Pty Ltd ("Australia ML") was registered in New South Wales on 27 May 1997. In a document dated 21 July 1997 entitled "Proposal of Business Investment in Australia" addressed by Shanghai Xieshun Industrial & Trade Co Ltd ("Shanghai Xieshun") to "Visa Officer - Australian Immigration Department" it was stated that Mr Tian had registered a branch company, namely Australia ML on behalf of Shanghai Xieshun. On 23 July 1997 Mr Tian left Australia.

5 Mr Tian re-entered Australia on 24 September 1997. On 6 December 1997 he was granted a Business (Long Stay) (Class UC) subclass 457 visa which was valid until 15 December 2001. The visa was granted on the basis that Mr Tian was sponsored by an overseas business, namely Shanghai Xieshun. It was a mandatory condition of the visa that: "The holder must not change employer or occupation in Australia without the permission in writing of the Secretary". (Migration Regulations Schedule 2 Part 457 subcl 457.611(i) and Schedule 8 item 8107) 6 By a memorandum dated 1 March 1999 Shanghai Xieshun advised Mr Tian as follows: "Your letter has been received and read. The Company has in principle agreed to what you propose to do - - - - to register a business-name company for the time being, using the name J.P. Yan for the company, in the names of your wife and yourself. It is not easy to do business in Australia and we hope you would make more efforts and at [sic] the meantime please pay more attention to your health." 7 On 4 March 1999 the Director-General of the Department of Fair Trading (NSW) issued to Mr Tian and his wife a certificate of registration of business name. The certificate was in respect of the business name "JP & Y Company" and it showed the proprietors of the business as Mr Tian and his wife. 8 On 30 August 2000, officers from the Department of Immigration and Multicultural Affairs executed a search warrant at a furniture shop in Rockdale, a suburb of Sydney. Mr Tian was in the furniture shop at the time. There was a dispute on the evidence before the Tribunal as to whether Mr Tian was working in the furniture factory on that day as a furniture sander. The Tribunal did not find it necessary to make detailed findings with respect to this evidence and there is therefore no need to consider it in detail. 9 On or about 17 January 2000, Mr Tian and his wife applied to the St. George Bank ("the Bank") for a loan. In their application they described themselves as partners of JP & Y Company. They provided to the Bank documents including draft income tax returns for the years ending 30 June 1998 and 30 June 1999. The draft income tax returns had been prepared by an accountant, Mr Wang, for Mr Tian and his wife as individual taxpayers and for the partnership JP & Y Company. The draft income tax returns indicated that Mr Tian and his wife were partners in a building consultancy service operated under the partnership name JP & Y Company.

Reasons of the Tribunal 10 The Tribunal observed that the key issue before it was whether Mr Tian had changed his employer or occupation in Australia without the permission in writing of the Secretary. 11 The Tribunal, after referring to the factual dispute arising out of Mr Tian's presence at the furniture factory, noted: "The review applicant told the Tribunal he did not earn an income from his endeavours in Australia and hence did not lodge an income tax return but rather lived off his wife's income, obtained from working in a construction company. No copies of income tax assessments or income tax returns have been supplied to the Tribunal by the review applicant or his wife." 12 It is agreed by the parties that the final sentence from the above passage from the Tribunal's reasons for decision is partly inaccurate. An income tax notice of assessment for the year ending 30 June 2000 directed to "Mrs Jian Ping Yan" (sic) was before the Tribunal. 13 The following paragraphs from the Tribunal's reasons for decision reveal its reasoning process at [29]-[34]: "I do not accept the review applicant as a witness of truth. The documents obtained by the Tribunal from St. George Bank, by subpoena, revealed the visa applicant and his wife stated in a loan application to the bank they are partners in a business called JP and Y Company. Copies of their income tax returns submitted to St. George Bank indicate both the review applicant and his wife earned an income that would attract taxation and assessments. The review applicant was given an opportunity to respond after hearing to the issues raised in the documents obtained under subpoena from St. George Bank. His advisor stated to the Tribunal that the income taxation returns were draft returns, unsigned and relate to income generated overseas by the sponsor company. I do not accept this explanation as plausible. I note that the income tax returns submitted to St. George Bank were for years 1998 and 1999 for the JP and Y Company partnership, for the review applicant personally and his wife. Whilst it could be argued that an incorrect draft was prepared for one year, I do not accept as plausible that such could occurred for 2 years. The signed loan application form stated the review applicant was a partner in JP and Y Company and his length of service was 3 years. The review applicant had made no submissions explaining this inconsistency. I place weight on this loan application form. I have read all the documents submitted by the review applicant in support of his claim, including declarations from tilers in his Bexley shop. I reject the evidence of Feng Lu the factory owner. I prefer to rely on the information supplied by the review applicant and his wife to St. George Bank as such information would have been submitted in order to obtain a benefit, ie a loan. The review applicant stated his wife received $640 per week. I place weight on the lack of production of taxation returns and assessments by the review applicant and his wife especially as the evidence reveals that the review applicant's wife was in receipt of assessable income tax for the 1999-2000 taxation year. It is clear the review applicant has not submitted any documents to the Tribunal which would reveal the true nature of his employment and his wife's employment in Australia. I accept that the review applicant has brought with him to Australia some monies but I am not satisfied that these monies reveal the review applicant remains in the employment of his nominator. The review applicant has provided numerous documents attempting to persuade the Tribunal that the business of which he claims he is the General Manager continues to be viable and attempts to develop various business dealings between Australia and China. The irrefutable evidence is that no business has successfully been concluded since the applicant obtained his visa. Therefore I am not satisfied that the review applicant is employed by his nominator company. I find that at the time of cancellation the review applicant was not employed by his nominator Shanghai Xieshun Industrial & Trade Co Ltd. I am satisfied that he has commenced his own business JP and Y Company and was earning an income from that legal entity. I find on balance from the evidence and material before me that the review applicant has breached condition 8107 of his Subclass 457 Business visa in that he changed occupations without the written permission of the Secretary even though he denies this."

CONSIDERATION 14 The first ground of review relied upon by Mr Tian is provided for by pars 476(1)(g) and 476(4)(b) of the Migration Act 1958 (Cth) ("the Act"). The Full Court of the Federal Court has given recent consideration to this ground of review in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi"). At [35] the Court said: "The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps: · A relevant particular fact first must be identified. · Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. · If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. · If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact. See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]." 15 The first 'particular fact' upon which Mr Tian places reliance (see [3] above) is only to be found in the reasons of the Tribunal, if at all, by inference. The respondent did not contend that there was any evidence before the Tribunal to justify the finding, were it in fact made. I therefore proceed on the basis that there was no evidence before the Tribunal to justify the finding assuming it to have been made. Can it be said that the Tribunal based its decision on the existence of that (inferred) fact? 16 The Full Court has made it plain that a decision is only based on facts which are critical to the making of that decision, and that the issue of criticalness is to be determined by making a judgment as to whether the conclusion reached by the Tribunal would have been different if the Tribunal had not assumed the existence of the relevant particular fact (Al-Miahi at [38] and [41]). It seems to me that it will not always be easy to make this judgment. It is well established by authority that a small factual link in a chain of reasoning may be just as critical to a decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance (Al-Miahi at [38]; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221). However, not every decision is reduced to writing in a way which makes the reasoning process completely transparent. Nor do written reasons always make it plain when a decision maker's satisfaction with respect to a particular matter of fact is achieved only because of his or her satisfaction with respect to another matter of fact (eg because it is considered, but not stated, that probability favours the second if the first is established). Fortunately, these potential difficulties in the application of pars 476(1)(g) and 476(4)(b) of the Act do not appear to arise in the present case. 17 The draft income tax returns assumed importance before the Tribunal because they indicated that Mr Tian was a partner in a business, namely JP & Y Company, which he operated with his wife and that he earned income from that business. The fact, if it be a fact, that the Tribunal proceeded on the basis that the draft income tax returns were prepared at different times, was relevant, if at all, only to the Tribunal's failure to accept that the draft returns were prepared in error. The error was said to be that the income to which they related was generated overseas by Shanghai Xieshun and was not generated in Australia by the business JP & Y Company. There was, however, other material before the Tribunal upon which the Tribunal relied in concluding that Mr Tian was a partner in the business JP & Y Company and earned income from that business. The Tribunal placed reliance on the loan application form which had been signed by Mr Tian and submitted to the Bank. That form described Mr Tian as self-employed and a partner in JP & Y Company. It gave a figure for his monthly gross income and indicated that his length of service with JP & Y Company was three years. The Tribunal further placed reliance on its findings that Mr Tian had failed to submit any documents to the Tribunal which would reveal the true nature of his employment and his wife's employment in Australia, and that the business of which he claimed to be the General Manager had not concluded any business since Mr Tian had obtained his visa. 18 I am satisfied that the Tribunal would have reached the same conclusion concerning Mr Tian's employment in the business operated by JP & Y Company even if it had not inferred, assuming that it did so infer, that the draft income tax returns had not all been prepared at the same time.

19 The second 'particular fact' upon which Mr Tian places reliance (see [3] above) is that the Tribunal had not been supplied with copies of income tax assessments for the applicant's wife. In fact, as is mentioned above, an income tax assessment for Jian Pin Yan for the year ending 30 June 2000 was before the Tribunal. There was plainly no evidence before the Tribunal to justify its finding that it had not been supplied with any income tax assessments for Mr Tian's wife. 20 I cannot, in my view, be said that the Tribunal based its decision on the existence of the fact that it did not have before it an income tax assessment for Jiang Pin Yan for the year ending 30 June 2000. That 'fact' was not critical to the Tribunal's decision which was firmly founded on the loan application form submitted to the Bank and the draft income tax returns provided to the Bank. Those draft income tax returns did not relate to the year ending 30 June 2000 but rather relating to the two preceding financial years. 21 I am satisfied that the Tribunal would have reached the same conclusion concerning Mr Tian's employment in the business operated by JP & Y Company even if it had not assumed that an income tax assessment for Jiang Pin Yan for the year ending 30 June 2000 was not before it. 22 Ground one of the application cannot be sustained. 23 Mr Tian further complains that the Tribunal erred in law in failing to inquire whether Mr Tian was complying with his contract of service with Shanghai Xieshun when engaging in business through the business name JP & Y Company. 24 The issue which the Tribunal was required to determine was, as it accurately identified, whether Mr Tian had changed his employer or occupation in Australia without the permission in writing of the Secretary. Neither party suggested that the Secretary had given Mr Tian any permission in writing. The real issue was thus simply that of whether Mr Tian had changed his employer or occupation in Australia. Mr Tian's visa had been granted on the basis that his employer was Shanghai Xieshun and his occupation in Australia was "the General Manager to take personal charge of the establishment of the branch company [in Australia], and its future business operations, staff appointments, capital transfer and other management activities" (taken from the document "Proposal of Business Investment in Australia"). 25 The information contained in the loan application form submitted to the Bank and in the draft income tax returns strongly suggested that Mr Tian and his wife were operating a building consultancy business in partnership on their own accounts using the business name JP & Y Company. The information was not consistent with Shanghai Xieshun being the true owner of the business operated under the business name JP & Y Company. In any event, it does not seem to me necessarily to follow, as I understand Mr Tian to have contended, that if Shanghai Xieshun were the true owner of the business, Mr Tian would have changed neither his employer nor his occupation by holding himself out as a principal in the building consultancy business operated under the business name JP & Y Company. However, it is not necessary to further explore this issue because, as has been pointed out on many occasions and repeated recently in Al-Miahi at [34], want of logic is not synonymous with error of law. 26 It cannot, in my view, be said that the inference was not reasonably open to the Tribunal that Mr Tian and his wife were operating a building consultancy business in partnership on their own account. 27 The second ground of review relied upon is also unsustainable. CONCLUSION 28 The decision of the Tribunal must be affirmed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Dated: 25 July 2001 Counsel for the Applicant: Mr L Karp