Z N Pearson (Member) RESIDENCE DECISION

Transcription

1 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2017] NZIPT AT AUCKLAND Appellant: CT (Migrant Investor) Before: Z N Pearson (Member) Counsel for the Appellant: Y Chang Date of Decision: 31 May 2017 RESIDENCE DECISION [1] The appellant is a 49-year-old citizen of the People s Republic of China (China), whose application for residence under the Business (Migrant Investment Investor 2) category includes her 55-year-old husband and 16-year-old daughter. THE ISSUE [2] Immigration New Zealand declined the appellant s residence application because it was not satisfied that she had transferred her investment funds to New Zealand through the banking system in accordance with the requirements of instructions or that the transfer guaranteed her ongoing lawful ownership of her investment funds. [3] The principal issue for the Tribunal is whether Immigration New Zealand s decision was correct. For the reasons that follow, the Tribunal finds that Immigration New Zealand s assessment was correct. Further, the Tribunal finds that the appellant does not have special circumstances, such that warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

2 2 BACKGROUND [4] The appellant lodged her Expression of Interest (EOI) on 27 May 2014 under the Business (Migrant Investment Investor 2) category of instructions. She was invited to apply for residence and lodged her residence application on 25 September [5] The appellant s application was assessed and approved in principle on 11 December Her accepted nominated investment funds consisted of USD652,092 held in an ANZ (China) bank account and NZD875,436 also held in an ANZ (China) bank account. Immigration New Zealand s Approval in Principle letter advised the appellant that she had 12 months from the date of the letter to transfer her nominated investment funds to New Zealand and place the funds into acceptable investments. The letter explained the requirements in instructions relating to the transfer of funds. Nominated Funds Transferred [6] On 7 January 2016, the appellant s then-representative advised that the appellant had transferred her nominated investment funds to New Zealand. The representative advised that the appellant s USD funds had been converted into NZD by purchasing a dual currency investment financial product from ANZ, giving her total funds of NZD1,739,075 in her ANZ (China) bank account. The representative provided a table showing that NZD682,835 had been transferred from the appellant s ANZ (China) bank account to her ANZ (New Zealand) account in a total of 11 transactions of between NZD44,985 and NZD67,985 from December 2014 to July The appellant had also transferred NZD1 million from her ANZ (China) bank account into her HSBC (China) bank account and subsequently to her HSBC (New Zealand) account between February 2015 and September 2015, in eight transactions of between NZD30,000 and NZD165,000. The representative stated that the appellant had a total of at least NZD1,582,835 in her ANZ and HSBC accounts in New Zealand. The representative provided a number of relevant documents showing the transfers. Queries about Reasons for Remittance of Funds [7] On 24 March 2016, Immigration New Zealand ed the representative with queries about some aspects of the transfers and the documents that had been provided. It requested documents showing the transfer of money from the appellant s HSBC (China) bank account to her HSBC (New Zealand) account. In

3 3 relation to the ANZ transaction receipts that confirmed the NZD682,835 had been received into the appellant s ANZ (New Zealand) bank account, Immigration New Zealand noted that the receipts recorded that the remittance reasons for these payments were living expenses, board and lodging and accommodation. It queried whether these funds would now not be used for the appellant s investment. If they were to be used for her investment, Immigration New Zealand requested clarification as to why these remittance reasons were given for the transfer of funds. [8] On 8 April 2016, the representative responded to Immigration New Zealand s queries providing explanations and relevant documents. The representative stated that, regarding the references made on the overseas funds transfer application forms of living expenses, board and lodging and accommodation, the appellant s private banker had confirmed that the remittance reason reference was only for personal reference purposes and did not prevent the funds being used for investment. The representative stated that ANZ was not able to provide any formal letters regarding the matter but the appellant s private banker may be able to explain this to Immigration New Zealand. [9] On 11 April 2016, the appellant s private banker at ANZ (New Zealand) ed Immigration New Zealand regarding the appellant s transactions. The private banker stated (verbatim) that: As far as I know the fund was transferred to New Zealand is for investment purpose, she has signed the investment documents a few months ago When client transfer fund to New Zealand some Chinese banks system prepopulate the fund transferring purpose e.g. living expenses or education. They cannot free type the purpose I m guess that might have been the case. [10] On 11 April 2016, Immigration New Zealand again ed the representative. It noted that the documents provided in relation to the transfers from China to New Zealand through her HSBC accounts also recorded that the reasons given for those transfers were overseas education and study. It stated that this raised a similar problem to the ANZ transfers because it gave different reasons for why the funds were transferred, rather than stating the purpose of the funds transfer was for investment. It stated that it needed ANZ (China) to confirm that, if the appellant had recorded that she was transferring the funds for investment in New Zealand, she would have still been permitted to do so. If ANZ (China) could not produce anything specific relating to the appellant, Immigration New Zealand requested any general information the bank could provide relating to the matter.

4 4 [11] Immigration New Zealand later advised, in response to the representative s queries about the progress of the application, that it was discussing the issue of the different remittance reasons noted on international transfer documents with its legal team and would contact the representative in due course. [12] On 2 June 2016, Immigration New Zealand ed the representative again to reiterate that it would consider evidence from ANZ (China) or from the Chinese State Administration for Foreign Exchange (SAFE) confirming that the appellant was allowed to use the funds, in New Zealand, for investment purposes rather than being restricted to using the funds for travel or study (the reasons noted on her funds transfer forms). [13] On 20 June 2016, the representative provided a statement from the appellant s previous client manager at ANZ (China), AA. The representative explained that AA was the only person the appellant could contact because she did not hold significant funds in ANZ (China) now. A document with the ANZ logo entitled Relationship Overview confirmed AA had been the appellant s client manager at ANZ (China) and a copy of a page from the appellant s customer investment profile with ANZ showed the appellant s signature and the signature of AA. The statement from AA was signed but undated and not on ANZ letterhead, and provided a mobile telephone number for AA. AA stated that she had been the appellant s client manager managing her funds held in ANZ (China) until her funds were transferred to New Zealand. AA stated (verbatim) that the funds the appellant transferred to New Zealand were held: freely by herself and that the transfer process had been undertaken according to relevant regulations and the funds transferred out are held and used by the client herself. Its purpose of use will not be restricted. [14] Immigration New Zealand advised the appellant that it would be seeking advice on the appellant s funds transfers because the Chinese government appeared to be restricting the use of foreign currency transfers and it would be unusual that the appellant would not be restricted to using the funds for the purposes that she had noted on her transfer forms. Immigration New Zealand s Concerns [15] On 26 July 2016, Immigration New Zealand wrote to the appellant with its concerns. Immigration New Zealand stated that it had concerns the appellant did not meet BJ7.1 (the aim and intent instructions relating to the transfer of nominated funds) or BJ7.10 (the transfer of nominated funds instructions).

5 5 It stated that the aim of the transfer instructions was to ensure that applicants transferred funds to New Zealand through a process that guaranteed the ongoing legitimate and lawful ownership of the funds. It was concerned that the appellant s nominated funds had not been transferred through the banking system in accordance with the instructions. It noted the reasons on the documents provided by the appellant stated that funds had been transferred to New Zealand for the purposes of board and lodging expenses, accommodation, living and overseas study. [16] Immigration New Zealand recorded that Chinese foreign currency regulations were in place to restrict the exchange of Chinese RMB into foreign currency and to restrict funds held in China being transferred abroad. As part of these restrictions, Chinese banks required account holders to note the purpose of funds transferred abroad. It recorded that it had previously raised its concerns that the use of the appellant s funds would be limited to the reasons she had stated in her funds transfer documents and its request for evidence from SAFE or the banks confirming the appellant s use of the funds would not be restricted. It also recorded her explanation and the statement from AA that the appellant would not be restricted to using the funds for the purposes stated on her documents. While AA had stated that the appellant s transfers complied with foreign exchange regulations, that statement appeared to have been made in her personal capacity because the statement was not on the bank s letterhead. [17] Immigration New Zealand stated it was not satisfied that the appellant had legally transferred her nominated funds because it had no official documentation from ANZ (China), HSBC (China) or SAFE confirming that the transfers complied with Chinese foreign exchange regulations. It requested documentation or an official explanation issued by either of the Chinese banks or SAFE showing that the transactions complied with Chinese currency regulations and that the funds could be used for the purposes of investment in New Zealand. It also requested copies of any other documents or explanations that the appellant believed would show that she had legally transferred her funds for the purpose of investment. Appellant s Response [18] On 9 August 2016, the representative provided copies of s from ANZ (China) to the appellant. The representative explained that the appellant had contacted ANZ (China) by seeking confirmation that her transfer process had been legal. The representative stated that the reply from ANZ confirmed that

6 6 the transfer process had been lawfully approved by the bank and that the appellant s funds would not be restricted in their use. The representative stated that the bank was only able to produce written confirmation when it received inquiries for formal investigation from third parties. The representative stated, if Immigration New Zealand still had concerns over the funds that had been transferred, the appellant would provide alternative funds to invest. [19] The representative provided a copy of the the appellant had sent to ANZ (China) requesting it confirm that she had lawfully transferred funds from the bank to her ANZ (New Zealand) bank account and that she could use those funds without restriction. The , from an employee of the bank (5 August 2016), stated that (verbatim): If the source of fund and the reason of your remittance are legal, you have the right to dominate your fund within our bank. However, after your fund flow out from our bank to beneficiary bank, I believe your money is no longer associate with our bank, you can dominate your fund by yourself if legal and we cannot give you the consent about your funds current status in every way. [20] In an reply, the appellant then asked the employee to confirm that her total funds of NZD683,000 had been directly transferred through the ANZ (China) banking system. An reply on 8 August 2016 confirmed the transactions undertaken by the appellant had been undertaken through the banking system and restated that (verbatim) since the funds has already out of our bank, your domination will not be restricted by our bank if legal. Immigration New Zealand s Further Concerns [21] On 12 August 2016, Immigration New Zealand wrote again to the appellant. It explained that, in order for funds to be considered transferred through the banking system to New Zealand for investment, the funds transfer must comply with all relevant laws in New Zealand and those of the country from which the funds originated. It reiterated its concerns that when she transferred funds to New Zealand, she stated that the funds were to be used for overseas study, board and lodging expenses, accommodation and living, but she had advised Immigration New Zealand she intended to use the funds for investment. It stated that Chinese foreign currency regulations were in place to restrict the exchange of Chinese RMB to foreign currency and restrict funds held in China being transferred abroad. Chinese banks required account holders to note the purpose of funds transferred abroad as part of these restrictions. The appellant had not noted on the relevant bank transfer documents that she was transferring the funds for investment.

7 7 [22] Immigration New Zealand recorded that it had received a statement from the appellant s previous client manager at ANZ (China), stating that the appellant s funds transfer was lawful. It noted that it had previously raised concerns that this statement was not sufficient because it was given in the client manager s personal capacity. It also recorded the response from the employee at ANZ (China) that the appellant s funds could be used for any lawful purpose. Because ANZ (China) was not aware that the appellant had used the funds for investment, they had not confirmed whether investment was a lawful use of the funds she had transferred. It reiterated its request that the appellant provide documentation or an official explanation issued by either ANZ (China), HSBC (China) or SAFE confirming that the funds transfer method the appellant had followed was lawful, if she was to use the funds for investment in New Zealand. It explained that any response must specifically show that the funds that she had transferred to New Zealand for the reasons of board and lodging expenses, accommodation, living and overseas study could instead be used for investment in New Zealand. Otherwise, it would not be satisfied, without further evidence, that investment was a lawful use of the funds and that she met the required instructions. Appellant s Response [23] On 1 September 2016, the representative provided a statement from an employee at HSBC (China) on company letterhead confirming that the appellant had transferred her funds out of China through the banking system, which was supervised by SAFE. The statement said that (verbatim): There is no legal provision that the funds cannot change its intended using. The funds are possessed by herself legally, her domination will not be restricted by the bank including personal investment. [24] The representative also ed Immigration New Zealand stating that the representative had consulted lawyers from China specialising in this area about whether it was lawful to change the purpose of use after funds had been transferred out of China or whether there was any specific law prohibiting the use of funds transferred out of China. The representative had copied an excerpt from the opinion of the lawyer into her , which stated (verbatim): The purpose recorded on the funds transfer document is the internal operating standard and requirement of People s Bank of China. No matter what is the purpose, the fund transferred overseas by individuals still belongs to personal property. For its scope of use, there is no provision in China s law about not changing the purpose. In accordance with China s law, the arrangement and use of individual property shall be determined by individuals who own such property, which can be used for any purpose, including investment.

8 8 Immigration New Zealand Decision [25] On 6 September 2016, Immigration New Zealand declined the appellant s application because it was not satisfied that the funds she had transferred to New Zealand for the purpose of investment had been transferred through the banking system, given its understanding that funds are transferred through the banking system when the transfer method meets all relevant laws in the country of origin and New Zealand. While the letter from HSBC and the statement from an unnamed lawyer had stated the appellant s transfers were completed lawfully within the banking system, the responses did not comment on the lawfulness of transferring funds to New Zealand for investment. There was therefore no evidence that the transfer of funds for investment was lawful given China s restrictions on the transfer of funds. It was also not satisfied the appellant s transfer method guaranteed her ongoing lawful ownership of her nominated funds. STATUTORY GROUNDS [26] The appellant s right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal under this section are that (a) (b) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [27] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand s Operational Manual (see THE APPELLANT S CASE [28] On 14 October 2016, the appellant lodged this appeal on the ground that the decision of Immigration New Zealand was not correct in terms of the applicable residence instructions.

9 9 [29] The appellant appointed counsel on appeal, who makes submissions (14 October 2016, 22 December 2016 and 23 January 2017) and provides the following documents: (a) (b) (c) (d) extracts from The Judge Over Your Shoulder (Crown Law Office, 1 March 2005); Legitimate Expectation and Extra Statutory and Illegal Promises (J R McManus QC, 26 March 2008); tables summarising the transactions involved in the transfer of funds to New Zealand from China, the relevant application for funds transfers (overseas) forms and bank statements for two other applicants represented by counsel, as well as copies of correspondence from Immigration New Zealand relating to those applications, to support counsel s arguments regarding inconsistency of decision-making by Immigration New Zealand (May to December 2014, and January 2016 to January 2017); copies of documentation relating to the appellant s complaint to Immigration New Zealand about the processing of her application, and Immigration New Zealand s response (October to December 2016); (e) documents relating to counsel s request under the Official Information Act 1982 for information relating to the appellant s appeal, and Immigration New Zealand s response to the request (October to December 2016); and (f) documents relating to a stage two complaint by counsel to the Christchurch and Wellington Area Manager of Immigration New Zealand and the response (December 2016 to January 2017). [30] The above documents are either in the nature of submissions or commentary to support submissions, or were already before Immigration New Zealand. The documents can therefore be considered, as appropriate, by the Tribunal on appeal.

10 10 ASSESSMENT [31] The Tribunal has considered the submissions and documents provided on appeal, and the files in relation to the appellant s residence application, which have been provided by Immigration New Zealand. [32] An assessment as to whether the Immigration New Zealand decision to decline the appellant s application was correct in terms of the applicable residence instructions is set out below. Although not relied on as a second ground of appeal, the Tribunal also considers whether the appellant has special circumstances that warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [33] The application was made on 25 September 2014 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because it was not satisfied that she had lawfully transferred her investment funds to New Zealand through the banking system in accordance with the requirements of instructions or that the transfer guaranteed her ongoing lawful ownership of her investment funds. [34] The instructions at BJ7.1 set out the aim and intent of the instructions that govern how nominated investment funds are transferred to New Zealand: BJ7.1 Aim and intent The instructions regarding the nominated investment funds and/or assets and the method of transfer of those funds to New Zealand are designed to ensure: a. the legitimacy and lawful ownership of the nominated funds and/or assets; and b. the direct transfer of the investment funds through a structured and prescribed process to guarantee ongoing legitimacy and lawful ownership of the funds invested in New Zealand. Effective 29/11/2010 [35] The instructions at BJ7.10 outline the requirements relating to the transfer of nominated investment funds: BJ7.10 Transfer of the nominated investment funds a. When their application is approved in principle, the principal applicant will be required to transfer the nominated investment funds to New Zealand. These funds must:

11 11 i. be the funds initially nominated, or the funds that result from the sale of the same assets as those initially nominated, in the resident visa application; or ii. iii. iv. be transferred through the banking system directly from the principal applicant's bank account(s) to New Zealand; or be transferred by a foreign exchange company to New Zealand through the banking system. Business immigration specialists may not accept the transferred funds if the applicant cannot provide satisfactory evidence of the following: the nominated investment funds have been transferred to the foreign exchange company directly from the principal applicant s bank account(s); and the nominated investment funds have not been transferred through the foreign exchange company contrary to the laws of New Zealand; and nominated investment funds transferred are traceable; and cash transactions were not made; and the foreign exchange company is not suspected of, or proven to have committed fraudulent activity or financial impropriety in any country it operates from or in.... c. The investment funds that are transferred to New Zealand and subsequently into an acceptable investment must be from the same source of funds as nominated in the resident visa application. Note: Nominated funds held in a country other than the country in which they were earned or acquired legally must have been originally transferred through the banking system, or a foreign exchange company that uses the banking system from that country. Effective 25/07/2011 [36] Immigration New Zealand was concerned about whether the appellant s transfer of her nominated funds to New Zealand, following Approval in Principle of her application, complied with China s foreign exchange regulations. The appellant had completed application for funds transfers (overseas) forms in order to facilitate the transfer of her funds here through both her ANZ (China) bank account and her HSBC (China) bank account. Immigration New Zealand queried why the appellant had not specified in those forms that the reason she sought to transfer her funds was for investment in New Zealand. It requested the appellant provide a statement from either the banks involved or SAFE that recorded that she would have been able to lawfully transfer the funds if the purpose of the transfer was stated as investment in New Zealand.

12 12 [37] The appellant did not provide a coherent explanation for why she had given the reasons for the funds transfers, variously, as board and lodging expenses, accommodation, living and overseas study rather than specifying the funds were to be invested in New Zealand. The response from an employee at ANZ (New Zealand) that the bank pre-populated these reasons and an applicant was not able to change these was unconvincing. The statements from AA and the employees at ANZ (China) and HSBC (China) somewhat side-stepped the issue they were asked to address, noting only that the appellant was able to use the funds in New Zealand for whatever purpose she wished as long as the transfers were legal. They failed to address the question of whether the transfers were, in fact, legal; that is, whether the transfers would have been approved by SAFE had the real purpose for the transfers (investment in New Zealand) been revealed by the appellant prior to making the transfers. Similarly, the excerpt from the legal opinion also failed to establish that the appellant had acted lawfully. [38] Given that the appellant failed to provide a reasonable explanation, it was open to Immigration New Zealand to surmise that failing to record that the purpose for the funds transfers overseas was for investment in New Zealand suggested that such a reason for funds transfer would not meet SAFE requirements. The fact that the appellant provided completely different reasons for the transfers, when she intended that the transfers were to be used for investment purposes only, gave the appearance that she had fabricated the true reason for transferring her funds so as to get around possible restrictions. This was a legitimate issue for concern and the evidence produced by the appellant did not allay Immigration New Zealand s concern. However, this being said, what now must be considered is whether Immigration New Zealand had a basis under instructions for declining the appellant s application due to this concern. Application of legitimacy and lawful ownership of the nominated funds [39] The overarching intent of the instructions relating to the transfer of nominated investment funds to New Zealand, as set out in BJ7.1, indicates that these instructions are designed to continue the process begun in the initial assessment of Business (Migrant Investment Investor 2) applications under BJ5. Under BJ5.40.c (effective 25 July 2011), applicants are required to demonstrate that they own their nominated funds/assets and that those nominated funds/assets have been earned or acquired legally. The focus of BJ7.1 then sets out the intention that the nominated funds that are transferred for investment here

13 13 maintain the legitimacy and lawful ownership already established as part of the assessment of the application prior to Approval in Principle. [40] The provisions at BJ7.10 outline the process by which an applicant must transfer his or her nominated investment funds to New Zealand. These provisions are designed to ensure that Immigration New Zealand, having previously satisfied itself that the funds have been earned or acquired legally as per BJ5.40.5, and that an applicant owns the funds, as per BJ5.40.1, can be confident that the funds approved in the initial stages prior to Approval in Principle are the ones that are transferred to New Zealand directly through the banking system, thus ensuring that the legitimacy and lawful ownership of the funds is preserved. These instructions are designed to ensure that the funds that arrive in New Zealand for investment here are traceable back to those funds approved, and to address money laundering concerns that might arise from cross-border monetary transactions. [41] The Tribunal notes that BJ7.1 is not a set of independent requirements, but rather the purpose provision for the transfer requirements, designed to assist with the interpretation of the transfer instructions under BJ7.10. Accordingly, BJ7.1 does not provide a ground for declining an application by itself. As stated above, BJ7.1.a sets out that the instructions are designed to ensure the legitimacy and lawful ownership of the nominated funds. The Tribunal reads this as legitimacy of the nominated funds and lawful ownership of the nominated funds. [42] Legitimacy is not defined in instructions and it is not clear what ensuring the legitimacy of the nominated funds is intended to capture. However, the Tribunal considers that when BJ7.1 is read alongside BJ7.10, it confirms an interpretation that an applicant s funds have to have gone through legitimate (lawful) processes in terms of foreign currency conversion and/or the transfer out of the country of origin to New Zealand, via the banking system, in order to meet instructions. Indeed, the Tribunal considers that it is implicit in BJ7.10.a.iii that nominated funds converted and transferred out of a country through the banking system have to be transferred in a legitimate way (in other words, in a lawfully permitted way). Any manipulation of banking processes in order to get funds to New Zealand would undermine the very purpose of the instructions, and render earlier assessments of whether nominated funds have been earned or acquired in a way that does not breach the domestic law of the applicant's country of origin effectively meaningless. What this means is that funds that have not, on the face of it, complied with a country s foreign exchange regulations or restrictions on

14 14 sending money abroad, might not, in the absence of evidence to the contrary, establish that the legitimacy of the nominated funds has been preserved. The legitimacy of the appellant s funds transfer [43] Immigration New Zealand read into the instructions at BJ7.10.a.iii a requirement that transfer methods must meet all relevant laws in the country of origin and New Zealand. Because the appellant could not demonstrate that her transfer met the relevant SAFE restrictions in China, she did not demonstrate that her transfers were lawful. Immigration New Zealand therefore concluded that her transfers could not be considered to have been undertaken via the banking system because they did not meet all relevant laws in China. On appeal, counsel argues that this reading into the instructions was incorrect and stretches the natural and ordinary meaning of the provision, which is simply to ensure that funds transferred into New Zealand come from an applicant s account in their own country to an account in New Zealand. [44] The Tribunal does not accept counsel s submissions. In light of the finding above, it is clear that Immigration New Zealand was correct to decline the appellant s application on the basis that she had not demonstrated, as required by BJ7.10.a.iii, that her nominated funds had been transferred through the banking system using lawful/legitimate processes. The Tribunal finds that part of any inquiry under BJ7.10.a.iii, when read with the terminology of ongoing legitimacy of BJ7.1.b, includes an assessment of whether the foreign currency conversion and transfer of nominated funds met all relevant laws, including those of the country from which the funds were transferred. As noted above at [37], the appellant did not establish that she met the SAFE requirements, and therefore did not demonstrate that the transfer of her nominated funds met all the relevant laws of China. The appellant s transfer therefore did not meet the requirements of BJ7.10.a.iii that the nominated funds be transferred legitimately through the banking system. [45] Counsel also submits that, if it sought to rely on provisions of the SAFE regulations, Immigration New Zealand needed to put the relevant SAFE regulations to the appellant for comment. The Tribunal wishes to make it clear that, while there will be an onus on an applicant to establish that their funds conversion and/or transfer method is lawfully permissible, similarly there is an onus on Immigration New Zealand to clearly put any specific concerns it may have about the legitimacy of the transfer to applicants. While Immigration New Zealand

15 15 could have better articulated aspects of its concerns, the Tribunal is satisfied that it put all its primary concerns to the appellant in a way that made clear the context of those concerns and what evidence was required to respond to those concerns. [46] The Tribunal observes that an amendment to instructions specifying that transfer methods must meet all relevant laws in the country of origin and New Zealand might usefully clarify the scope of these requirements for applicants. Lawful ownership of the nominated funds [47] For the sake of completeness, the Tribunal also considers whether Immigration New Zealand s other ground of decline, that the appellant s method of transfer potentially undermined her ongoing lawful ownership of the nominated funds, was correct. The Tribunal funds that this was not a correct basis on which to decline the appellant s application because the evidence demonstrated that the appellant owned the funds she transferred to New Zealand throughout the assessment process; that is, both before and after the Approval in Principle. Concerns about the legitimacy of any funds transfer do not automatically bring into question the applicant s ownership of those funds, which is a separate enquiry (see BP (Migrant Investor) [2016] NZIPT at [48]). In any event, despite Immigration New Zealand s incorrect finding on this ground, its decision to decline the application was still correct for the reasons set out above Fairness in processing application [48] Counsel also submits that Immigration New Zealand relied on changes to Immigration New Zealand practice in the Business (Migrant Investor) category in relation to evolving Chinese restrictions on funds transfers that were outlined in newsletters of the Business Migration Branch from July 2016 and August 2016 and that relying on the content of these newsletters was outside of the instructions. The Tribunal agrees that Immigration New Zealand s newsletters are not the equivalent of instructions and its newsletters cannot replace the instructions in providing a basis for Immigration New Zealand s decisions. However, as outlined above, Immigration New Zealand s decision here was based on the instructions. [49] Counsel also alleges that Immigration New Zealand s decision was unfair because it was inconsistent with earlier and subsequent decisions where applicants have transferred their funds from China in the same way as the appellant, giving non-investment related reasons for their funds transferred to New Zealand for investment. While Immigration New Zealand must strive to ensure its

16 16 decisions are consistent (A1.5, effective 29 November 2010), the fact that it may potentially have incorrectly allowed other applications (something the Tribunal cannot comment on), does not provide a justification for doing so in this case. [50] Counsel also submits that Immigration New Zealand acted unreasonably when it did not allow the appellant a final opportunity to change her nominated investment funds. The Tribunal does not accept that Immigration New Zealand acted unreasonably when it refused to allow the appellant to replace her nominated funds that she had transferred to New Zealand with new funds. The instructions at BJ7.10 clearly require nominated funds to be those initially approved in the residence application, and there is nothing in that provision that allows new nominated funds to be introduced after Approval in Principle is given. Correctness of decision [51] The Tribunal finds that Immigration New Zealand s decision to decline the appellant s application was correct. The appellant did not demonstrate that the transfer of funds from her Chinese bank accounts to her New Zealand bank accounts satisfied the Chinese SAFE regulations, given that the purpose for which she had transferred the funds was for investment in New Zealand rather than the purposes that she had recorded in her transfer documents. She did not therefore demonstrate that her funds transfer was legitimate, namely that the transfers met all the relevant laws of China. The appellant s transfer therefore did not meet the requirements of BJ7.10.a.iii. Whether there are Special Circumstances [52] The Tribunal has power pursuant to section 188(1)(f) of the Act to find, where it agrees with the decision of Immigration New Zealand, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration of an exception to the residence instructions. [53] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. [54] Special circumstances are circumstances that are uncommon, not commonplace, out of the ordinary, abnormal ; Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J.

17 17 Personal and family circumstances [55] The appellant is a 49-year-old citizen of China. Her 55-year-old husband and 16-year-old daughter are included in her application. [56] The appellant lived in New Zealand from January 2014 to November 2016, as the holder of either a visitor visa (guardian) or a work visa. She made eight departures during this time, of up to three months each. Her last work visa expired on 29 December She departed New Zealand on 14 November 2016 and returned only briefly, as the holder of a visitor visa, for 11 days in March [57] The appellant s daughter held a student visa from January 2014 and departed New Zealand eight times during that time. Her last student visa expired on 29 December She, too, is not presently in New Zealand, having departed from New Zealand on 14 November 2016 and returned only briefly, as the holder of a visitor visa, for 11 days in March The appellant s husband visited New Zealand briefly six times as the holder of visitor visas. He was last in the country in November [58] According to information provided in her EOI, the appellant s parents reside in China. Immigration New Zealand records indicate she also has a sister who resides there. Her husband s widowed mother and two siblings also reside in China. Health, English language and character requirements [59] The appellant, her husband and daughter were found to have an acceptable standard of health. The appellant and her husband met the character requirements of instructions. The appellant presented an International English Language Testing System test report showing an overall band score of 5.5. Her husband stated that he would pre-purchase English for Speakers of Other Languages tuition. Settlement and potential contribution [60] The appellant lived in New Zealand for just over three years with her daughter and they were visited regularly by her husband. There is no information provided about their settlement here. [61] The Tribunal is required to have regard to the interests of the appellant s daughter. While she was in New Zealand, the daughter held a student visa and

18 18 presumably attended secondary school here. However, there is no information about her present circumstances and nothing to indicate that her interests necessitate a grant of residence. [62] According to information provided in her EOI, the appellant has worked as the General Manager of a property development service company in China since It is not clear whether she remained working for that company during her time in New Zealand from January 2014, or whether she found employment here. Prior to this, she was managing director of another property management company and an assistant engineer for two different companies for a total period of 14 years. She holds two diplomas in mechanical engineering from two different institutions in China, as well as a Diploma in Foreign Trade English and a Bachelor of Accounting degree from another institution in China. [63] Information provided with the appellant s application indicates that her husband holds a bachelor s degree (subject unspecified) from a foreign language college in China. He worked as a manager in a securities company before becoming a shareholder in another company and then the legal representative of the company for which the appellant worked. Discussion of special circumstances [64] The appellant and her family members seek to reside and invest in New Zealand, relying on an investment of NZD1.5 million under the Business (Migrant Investment Investor 2) category. However, her proposed investment is not out of the ordinary for applicants under that category. [65] The appellant and her daughter lived in New Zealand for about three years, but made regular return visits to China during this time. It appears that the appellant and her daughter are no longer living here. The appellant and her family members have no familial nexus to New Zealand and all of their extended family resides in China. There is no indication that any contribution the appellant and her family members might make to New Zealand would be out of the ordinary. [66] The Tribunal has considered the appellant and her family members circumstances, both individually and cumulatively, and finds that their circumstances are not special and do not warrant a recommendation that the Minister of Immigration consider an exception to instructions.

19 19 DETERMINATION [67] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances that warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Immigration Act [68] The appeal is unsuccessful. Order as to Depersonalised Research Copy [69] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant s name and any particulars likely to lead to the identification of the appellant or her family members. Z N Pearson Z N Pearson Member Certified to be the Research Copy released for publication. Z N Pearson Member