FEDERAL COURT OF AUSTRALIA

Lei v Minister for Immigration & Citizenship [2008] FCA 1768

YU HUI LEI v MINISTER FOR IMMIGRATION & CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

VID 699 of 2008

GORDON J

25 NOVEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against an order of Federal Magistrate Riethmuller of 22 August 2008 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) of 4 May 2007:  [2008] FMCA 1130.  The Tribunal affirmed a decision of a delegate of the first respondent (“the first respondent”) to refuse the appellant a visa.

PROCEDURAL HISTORY

2                     The appellant is a citizen of the People’s Republic of China (“China”).  On 6 March 2002, she lodged an application for a Business Skills (Residence) (Class BH) visa (the “Visa”).  The appellant included her daughter as a secondary visa applicant.  The first respondent refused the Visa application on 13 March 2003.  On 3 April 2003, the appellant applied to the Tribunal for a review of that decision.  On 9 December 2005, the Tribunal affirmed the decision of the first respondent.  The appellant then sought judicial review of the Tribunal’s decision.  On 30 August 2006, by consent, the Tribunal’s decision was quashed and the matter remitted to the Tribunal for hearing according to law.  In the remittal order, the Federal Magistrate noted that the Tribunal appeared not to have considered certain information provided by the appellant. 

3                     On 11 December 2006, the matter was reheard before a differently constituted Tribunal.  On 4 May 2007, the Tribunal again affirmed the decision of the first respondent.  The Tribunal’s decision was in turn upheld on application for judicial review by the Federal Magistrate on 22 August 2008.  The appellant now seeks review of that decision. 

4                     The Visa application was for the grant of a subclass 844 (Investment-Linked) visa.  The criteria for grant of such a visa were set out in Pt 844 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”) as in force as at 6 March 2002.  (This part was repealed with effect in 2003). 

5                     Under subcl 844.222(1), the appellant was required to provide evidence that she had the funds to make a “designated investment” of an amount prescribed in the relevant clause, which was then $750,000.  The appellant was also required to satisfy the criteria under subcl 844.222(2), which stated, in part, that the first respondent must be satisfied that the funds invested were legally owned by the appellant, and were accumulated from a “qualifying business” or “eligible investment” activities of the appellant.  “Qualifying business” was defined to mean “an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services … to the public …”:  reg 1.03 of the Migration Regulations.  “Eligible investment” in relation to a person included an ownership interest in a business, a loan to a business, or cash on deposit:  see cl 844.111.

6                     Before the Tribunal, the appellant claimed she satisfied subcl 844.222(2) on the basis that she had funds (in excess of $750,000) that had been accumulated from qualifying business activities.  The Tribunal accepted that the appellant had established legal ownership to funds in excess of $750,000, but concluded that she had not provided any evidence to corroborate her testimony that the funds had been accumulated from qualifying business activities.  The Tribunal explained to the appellant that it needed to see independent evidence showing the relationship between the qualifying business and the funds.  It indicated that the companies she referred to ought to be able to produce financial statements or other documentary business records showing transfers of their funds.  

THE TRIBUNAL DECISION

7                     The Tribunal concluded that although evidence had been presented of qualifying business activities and evidence had been presented of the funds, the link between the two was not established to its satisfaction.  The Tribunal stated that this could have been due to the fact that the appellant’s business or businesses did not conduct sufficient transactions to accumulate the funds and the funds were sourced elsewhere, or simply due to the failure of the parties to document the transactions.  However, in the absence of any documentary trail linking the activities and the funds, the Tribunal was not satisfied that the funds to be invested were accumulated from the qualifying business activities, and therefore the mandatory requirement under subcl 844.222(2) was not satisfied.  In effect, as the Federal Magistrate noted, the Tribunal found that the appellant’s testimony was not credible because she could not produce a paper trail documenting the flow of funds from businesses to her in payment for goods or services rendered, even though it would be expected, in the Tribunal’s view, that such documents would exist had she earned such amounts of money in the manner claimed:  [2008] FMCA 1130 at [12].  The Tribunal therefore affirmed the first respondent’s decision.  

THE COURT BELOW

8                     Before the Federal Magistrate, the appellant filed both an initial and an amended application.  The amended application raised the following seven grounds:

1.                   The Tribunal already formed its decision to refuse my application before the hearing …

2.                   The Tribunal member did not read my Court Book at all before the hearing.

3.                   The international accountants’ report is a very important document on my business activities, their job is to scrutinize and audit all my business transactions, and had only formed their report after actual investigations, if the Tribunal’s main concern was regarding my business activities, they should, at least, read what the business experts had to say, and yet this document was not considered by the member of [the] Tribunal and was not mentioned in the Tribunal’s decision. 

4.                   The Tribunal member substituted the accountant report issued by Coopers and Lybrand CIEC with “a letter from Lincolns” (as per Item 50 in the member’s decision).  I referred the accountant report to the member during the hearing, and wrote later in my letter dated 14 February 2007 that “the Court book of Maria Ngo (the Tribunal’s lawyer during my first Federal Magistrate Court review) is not complete, please refer to mine”.  The member purposely ignored the accountant report.

5.                   The commission I received from MM Cables on the first eight contracts were all recorded in the accountant’s report, the accountants finalized their report by checking with the payer of the commission, namely, MM Cables.  MM Cables have provided at least three separate statements to the immigration officers and the Tribunal regarding the additional contracts, these, however, were ignored by the Tribunal and judged the case according to its own specific requirement that is not made know to the applicant.

6.                   The Tribunal did not let the applicant know their particular requirements and even fabricated stories such as Item 50, 52, 53 and 54 in the Tribunal’s decision.  Such accusations are unfunded (sic) and insulting. 

7.                   There have been many immigration officers and Tribunal members assessing my application in the past years and every one has his/her own method and standard, and yet there is a lacking of general guidelines that is known to the public, there is only minimum communication with the applicant and not letting the applicant know what exactly is the standard they have to fulfil or satisfy.  All of these factors enable the officials to judge cases according to their will, no matter what fact is there. 

9                     The Federal Magistrate considered and rejected each of the seven grounds. 

APPLICATION TO THIS COURT

10                  The appellant now seeks prerogative relief of the kind issued in the exercise of the Federal Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Migration Act 1958 (Cth) and the limited grant of original jurisdiction under that provision).  This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”).  The appeal is in the nature of a rehearing and not an appeal in the strict sense:  Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error:  Allesch v Maunz (2000) 203 CLR 172 at [23].  Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the Federal Magistrates Court and make such judgment or order as, in all of the circumstances, is appropriate including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 

11                  Two grounds of appeal are set out in the Notice of Appeal filed in this Court on 4 September 2008. 

1.         The … Tribunal did not follow the previous Federal Magistrate Court’s (sic) order, and requested irrelevant evidence that does not exist.  The subsequent refusal of the visa application is incorrect.

2.         The Federal Magistrate (sic) Court of Australia reached an erroneous conclusion based on the facts presented to the Court.

ANALYSIS OF GROUNDS 1 AND 2

12                  Both grounds of appeal appear to reflect a misunderstanding of the task and role of the Federal Magistrates Court. 

13                  First, findings of fact, including findings of credibility, are the exclusive province of the Tribunal subject to issues of unreasonableness, arbitrariness, or irrationality:  SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [15]-[26].  To the extent that the appellant is complaining that the Federal Magistrate failed to consider the merits of her claim for a visa (whether under ground 1, ground 2, or both), the appellant is impermissibly seeking merits review. 

14                  However, extending the appellant (as a self-represented litigant) the benefit of the doubt, a more tenable construction of the first ground of appeal is a contention that the Federal Magistrate erred in failing to find that the Tribunal’s adverse credibility determination was unreasonable and amounted to jurisdictional error.  The unreasonableness is said to arise from the failure of the Tribunal to pay sufficient (or even any, as alleged with respect to the accountants’ report referred to immediately below) regard to the documentary evidence that was adduced by the appellant to link the accumulation of funds and qualifying business activities.  Specifically, the appellant pointed to:  (1) a report dated 22 February 1995 prepared by Coopers & Lybrand CIEC International Accountants together with a letter from Lincolns Barristers & Solicitors dated 8 May 1996; (2) evidence from Dr Su Vun Chung (including letters dated 14 April 2003, 20 July 2005, and 5 January 2006); and (3) a letter from Mr George Khor dated 31 January 1997. 

15                  Ultimately, even if the appellant’s first ground of appeal is understood in this way, it must fail.  Without descending to a merits-review level of detail, the short answer to the appellant’s contention is that none of the documents, whether taken singularly or collectively, establish that the moneys found by the Tribunal to be legally owned by the appellant as at the dates of the relevant visa application (ie 2002) were accumulated from qualifying business activities.  All of the evidence in question relates to the period from 1989 to 1996, six or more years before the relevant point in time.  Even assuming that the documents adequately evidenced accumulation of funds for the earlier time period (and even as to that question, reasonable minds might differ, given that the evidence is in the form of conclusory statements rather than of specific statements referenced to underlying transaction and transfer documents), to make good the accumulation link one would have to draw the inference that the money now (ie as of 2002) held by the appellant was the same money (more or less, perhaps making some allowances for interest) as that accumulated six or more years earlier.  To put it another way, one would have to make the assumption that the appellant had not spent or disposed of some or all of the earlier accumulated money and then earned or acquired other money from other sources in the intervening years, in which case the money now in the appellant’s possession might not be money accumulated from qualifying business activities.  To the extent that the Tribunal considered the materials specified by the appellant, it refused to draw the inference or make the assumption favourable to the applicant. 

16                  While it might be said that the evidence was such that the inference favourable to the appellant was open to the Tribunal (although, again, that would be putting the appellant’s case at its highest), it cannot be said that the failure to draw it was arbitrary, irrational, or so unreasonable as to warrant a judicial review court going behind the Tribunal’s credibility finding.  It is not unreasonable to form the view that evidence of moneys being accumulated six or more years earlier does not satisfactorily establish the source of money currently held by a person.  Similarly, given the sums of money involved, it is not unreasonable to expect that there might exist at least some contemporaneous underlying transfer records such as invoices, cancelled cheques, or bank statements linking the currently held funds to the qualifying business activities:  see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 at [12] and Merabishvili v Minister for Immigration and Multicultural Affairs [2000] FCA 1879 at [8].  Finally, even if the Tribunal overlooked or gave insufficient consideration to some of the material now highlighted by the appellant, it cannot be said that a more detailed consideration would have altered the analysis or the result.  Accordingly, the Federal Magistrate did not err in failing to find that the Tribunal’s adverse credibility determination was unreasonable, arbitrary or irrational.

17                  With respect to the second ground of appeal, to the extent that the appellant contends that the Tribunal was required or bound to simply “follow the previous Federal Magistrate Court’s order”, then that contention fails at the outset.  As noted earlier, the decision now under review is the decision of the Federal Magistrate, not the decision of the Tribunal.  In any event, it was not open to the Tribunal to simply “follow the previous Federal Magistrate Court’s order”.  The 30 August 2006 remittal order did not direct the Tribunal to reach any particular result or even conduct any particular inquiry; instead, it merely ordered that the matter be reheard according to law and “noted” certain matters relating to additional evidence.  It did not limit or constrain the Tribunal’s inquiry on remittal. 

18                  In other words, the Tribunal was to conduct a hearing de novo.  As a reconstituted body which considered, de novo, different material at a different point in time, the Tribunal was entitled - and indeed bound - to independently reach the result it considered proper based on the material before it.  To the extent any error occurred in that process, that would be the error upon which an appeal might properly be founded, not the failure to follow a direction which was in any event not made.  Therefore, the appellant’s second ground must be understood as a contention that, by failing to consider the additional material noted by the Federal Magistrate in the remittal order, the Tribunal made an adverse credibility finding that was arbitrary or unreasonable in light of all the evidence before it on remittal, which contention fails for the reasons given above.  There was no basis, whether as alleged or at all, for the Tribunal to simply “follow the previous Federal Magistrate Court’s order”. 

CONCLUSION

19                  For these reasons, I cannot identify any appellable error on the part of the Federal Magistrate whether as alleged or at all.  The appeal therefore must be dismissed. 

20                  Based on the foregoing, I would dismiss the appeal and order the appellant to pay the first respondent’s costs of the appeal to be taxed in default of agreement.

Associate:

Dated:         25 November 2008