Case: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470
Outcome: cited
respondent submitted that to the extent that the Tribunal's decision depended on the assessment of the evidence of the applicant's witnesses, there is no evidence to suggest that the Tribunal was unable to make a proper assessment of that evidence, including the sincerity and reliability of the witnesses ( NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 at 475). For the reasons indicated above, I reject that submission even if it raises a relevant consideration for my current determination. In light of the inadequacy of the translation, the Tribunal simply could not properly assess the evidence of Ms Yu-Lin and undertake the weighing exercise it was required to engage in. I wish to make one further observation as to the evidence before the Tribunal and the approach taken by the Tribunal. The Tribunal relevantly decided that: 7. On 25 November 2006 an enduring power of attorney was executed by the mother of Ms Eao, Ms Pao Yu Yu-Lin (Ms Yu-Lin), appointing Ms Eao as her attorney. On 15 March 2007 Ms Eao executed a Deed of Acknowledgment of Trust both as trustee and as attorney for the beneficiary, Ms Yu-Lin, reciting that the property had been purchased on 6 June 1996 as trustee for the beneficiary. On 5 April 2007, the property was transferred into the name of Ms Yu-Lin alleging her entitlements pursuant to that trust. The transfer of land was executed by Ms Eao as attorney for Ms Yu-Lin. Ms Eao acknowledged that, prior to March 2007, no document existed which recorded her as holding the property in trust, whereas a document such as the option agreement warranted that she was the sole owner with no other person having any interest or rights in the property. She said that she had relied on professional advice from those who were aware that the legal owner was her mother. ... 9. Ms Yu-Lin provided evidence confirming her daughter's evidence that the property had been purchased in the daughter's name but that she was the true owner. Ms Yu-Lin said that the $505,000 was not a loan but funds for the purchase of the property. She maintained that she was happy to invest in Australia but would not want to benefit one daughter to the detriment of her two other children. She said that she trusted her daughter and was aware of the mortgage as security for loans to other companies, the failure to pay full rent as a result of financial difficulties and the option to sell to Messrs Hughes and Doolan. She said that she had borrowed a part of the $505,000 remitted to Australia. ... 17. The primary issue before the Tribunal is whether the rental income derived from the property in the three years ended 30 June 2002 represented assessable income of Ms Eao or Ms Yu-Lin. The only evidence of the property being beneficially owned during this period was the oral evidence of the mother, the daughter, the son, the daughter's de facto partner and his business partner . The only documentary contemporaneous evidence was a telegraphic transfer order, transferring $505,000 from Ms Yu-Lin to the account of Ms Eao. The evidence pointing to beneficial ownership by Ms Eao or evidence indicating concern of acceptance of the above oral evidence included : (a) Notwithstanding that the ownership arrangements were made with legal advice, no documentary evidence existed prior to 2007 of any trust relationship. All prior documentation was to the contrary. (b) $96,373 of the purchase costs was borrowed directly in Australia by Ms Eao for no apparent consideration by Ms Yu-Lin. (c) Ms Yu-Lin was prevented from acquiring land in Australia in 1996. (d) An apparent informal acceptance of non-payment of rent. (e) The use of the property to provide security for borrowings of two other companies associated with Mr Hughes for no apparent consideration. (f) Payment of, at least, some rent into the same bank account of Ms Eao. While the majority of the rent was paid into an account in the name of Ms Yu-Lin, Ms Eao was the signatory on this account and there is no evidence of the subsequent disposition of the funds credited to that account. (g) Ms Eao was employed by Superior Hide and was the person primarily responsible for recording payments and receipts of that business. (h) The statement attributed to Mr Hughes at the interview with the ATO auditor in October 2003 that the property was owned by Ms Eao. (i) The evidence of Ms Yu-Lin that: I would never want to benefit my daughter at the expense of my other two children. I would only ever invest any money if it would be for the benefit of my children jointly and then only after my passing. This is at odds with the acceptance of non-payment of rent and allowing the property to be used as security for personal guarantees. (j) The letter from Walker &amp; Company in July 2004 indicating the rent payments were interest on a loan from Ms Yu-Lin. (Emphasis added.) 18. On balance, I am satisfied that the applicant has not discharged the required onus of proof that she was not the beneficial owner of the property during the relevant period and that the amended assessments were excessive . It is unnecessary for the Tribunal to make a finding as to whether the $505,000 was a loan or gift to Ms Eao. It is appropriate to note that the actual source of the funds was not clearly demonstrated. It is accepted that it is possible the funds were by way of loan with the rental payments in lieu of interest and the subsequent transfer of the property to Ms Yu-Lin in 2007 being consideration for repayment of the principal. However, the full circumstances are something known only to the family. (Emphasis added.) As I have alluded to previously, it is apparent from the above extracts that the Tribunal did not explain its process of balancing the evidence set out by the Tribunal in sub-paragraphs 17(a)-(j). The Court cannot ascertain to what extent the important evidence of Ms Yu-Lin as translated had any impact on the balancing process, one way or another. In view of the failures of the translation process, the Tribunal could not make any proper assessment of the evidence, even allowing for the fact that the Tribunal was aware of the flaws in the process it had adopted.