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Zeng v Minister for Immigration

Zeng v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZENG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 169

MIGRATION – Migration Review Tribunal – aged dependent relative -looseness of language – relevant considerations – irrelevant considerations – whether hearing in public – request for further oral hearing.

Evidence Act 1995, ss.81, 87
Migration Act 1958, ss.359A, 359B, 363A, 365, 421, 424A, 429

Migration Regulations 1994, regs1.03, 1.05A, sch.2 cl 838.212

Applicant:

QING YI ZENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	MIGRATION REVIEW TRIBUNAL
File Number:	MLG 689 of 2006

Judgment of:

Riley FM

Hearing date:

23 November 2006

Date of Last Submission:

23 November 2006

Delivered at:

Melbourne

Delivered on:

1 March 2007

REPRESENTATION

Counsel for the Applicant:

Anthony Krohn

Solicitors for the Applicant:

Clothier Anderson

Counsel for the First Respondent:

Stephen Donaghue

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The title of the proceeding be amended so that the name of the first respondent is Minister for Immigration and Citizenship.
The application filed on 26 May 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 689 of 2006

QING YI ZENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 27 April 2006 which affirmed a refusal of an application for an aged dependent relative visa, subclass 838.
The applicant is a 72 year old citizen of the Peoples Republic of China. On 7 December 1999, she applied for an aged dependent relative visa (“the visa”). The applicant was nominated by her son, Mr Ming Can Lin (“the nominator”). On 15 February 2002, a delegate of the first respondent refused to grant the applicant the visa.
On 6 March 2002, the applicant lodged with the Tribunal an application for review of the delegate’s decision. On 1 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 169
Decision Date: 1 March 2007

CaseChat Overview and Summary

The case of Zeng v Minister for Immigration involved a dispute regarding the refusal of a visa application by the applicant, Zeng. The matter was heard and determined by the Federal Court of Australia. The primary legal issue before the court was whether the Tribunal erred in its assessment of the applicant's evidence concerning financial assistance provided by a nominator from Australia. Specifically, the court had to decide if the Tribunal correctly evaluated the absence of documentary evidence to support the applicant's claims of financial support.

The court examined the Tribunal's approach to the evaluation of evidence and its decision-making process. It noted that the Tribunal was entitled to question the reliability of the applicant's oral evidence and to seek documentary evidence to corroborate those claims. The court further held that the Tribunal did not err by not accepting the applicant's evidence at face value and could legitimately decide against the applicant in the absence of satisfactory documentary evidence. It emphasised that the Tribunal's role was to assess the evidence and determine if it was satisfied that the visa criteria had been met. The court concluded that the Tribunal was within its authority to decide that the visa application should be rejected as it was not satisfied with the evidence provided.

The court dismissed the applicant's appeal and ordered the title of the proceeding to be amended to reflect the current name of the Minister. The applicant was also ordered to pay the costs of the first respondent, fixed at $5,000.

Orders

Orders of the court

The title of the proceeding be amended so that the name of the first respondent is Minister for Immigration and Citizenship.

The application filed on 26 May 2006 be dismissed.

The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first respondent’s written submissions on this point were as follows:[24] This submission [by the applicant] reads a statement in the Tribunal’s reasoning which was made in a particular factual context as if it were intended to propound a general rule of law. [footnote: Applicant’s contentions, para 36.] The statement in question was made in the context of a discussion of evidence concerning the provision of financial assistance by the nominator from Australia to the applicant in China. The Tribunal concluded that much of the evidence relating to that assistance was implausible. [CB 287.4] That was a factual judgment that the Tribunal was entitled to make. In cases of this kind, it is important that the Court does not overstep the boundaries of its role. As Wilcox, Marshall and Jacobson JJ observed in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs:Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been… it cannot be said the Tribunal member’s view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. [footnote: [2004] FCAFC 139, [17] (emphasis added).][25] The transfer of significant sums of money from one country to another is an activity of a kind that naturally lends itself to the creation of documentary records (whether at the point of the withdrawal of funds, the transfer of the funds, or the deposit of funds). Given the Tribunal’s concerns about the reliability of the oral evidence that had been placed before it, it was natural for the Tribunal to seek further evidence in order to allay its concerns. It specifically requested such evidence pursuant to s.359 of the Act, but the evidence sought was not provided. [CB207][26] In those circumstances, where it was open to the Tribunal to consider that documentary material should have existed, it was open to the Tribunal to decide that in the absence of such material it would not make positive findings that the claimed financial assistance had been provided. That is all the Tribunal was saying in the passage about which the applicant complains.[27] While there was some evidence which purported to corroborate the applicant’s claims about the provision of money to her by the nominator (the evidence of people who claimed to have taken cash to her from Australia), [CB40, 44, 46] the weight to be given to that evidence was a matter for the Tribunal. The Tribunal did not overlook this evidence. [CB262.8, 286.9] Once it was considered, the Tribunal was entitled to give it whatever weight it wished (including no weight). The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a factual assertion by an applicant is not made out. [footnote: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348; Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857, [19] (Full Court).] Further, the High Court has accepted that it does not involve an error of law for the Tribunal to reject corroborative evidence even in the absence of evidence that contradicts that corroborative evidence. [footnote: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [49] per McHugh and Gummow JJ.][28] The applicant relies upon Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs [footnote: [2006] FCA 328], but nothing in that case is inconsistent with the propositions set out above. In this case, unlike that case, the Tribunal did not approach its task by reference to the ‘burden of proof (whether ‘common sense’ or otherwise). [footnote: [2006] FCA 328, [9].][29] The function of the Tribunal was determined by s.65 of the Act. The effect of that section, in combination with regs 1.03 and 1.05A, was that the visa could be granted to the applicant only if the Tribunal was ‘satisfied’ that the applicant was ‘dependent’ upon the nominator. The applicant had the opportunity to advance whatever material she wished in an endeavour to assist the Tribunal to reach that state of satisfaction.[30] A decision-maker may not be ‘satisfied’ that something has occurred even though he or she cannot exclude the possibility that it occurred. While in that situation it may be impossible for the Tribunal to reject an applicant’s claims, it does not follow that the Tribunal is required to accept those claims. [footnote: McDonald and Director-General of Social Security (1984) 1 FCR 354, 358-359 (Woodward J) 368-369 (Jenkinson J); Lodkowski v Comcare (Goldberg J, unreported, 5 March 1998).] As the Full Federal Court accepted in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003:As s.65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. [footnote: [2005] FCAFC 73, [17].][31] That same approach has been taken in several other Full Federal Court decisions. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [footnote: [2004] FCAFC 215, [15]. See the further examples of similar decisions, where no adverse finding was made, being upheld in NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033, [33]; Applicant A159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 473.], for example, the Tribunal had found that the applicant’s claims made were at ‘such a general and vague level that the Tribunal cannot establish the relevant facts’. The Tribunal therefore had not made any findings either accepting or rejecting the claims. That approach was upheld by Ryan, Jacobsen and Lander JJ, who pointed out, having referred to s.65, that:It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. [footnote: [2004] FCAFC 215, [15]. See also Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, 226.][32] It follows that the applicant’s submissions that the Tribunal erred in imposing an improper burden or standard of proof should be rejected. The Tribunal was correct in concluding that, because it was not satisfied that the visa criteria were met on the available evidence, it was required to reject the application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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