Chatha v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZHC 1044
•14 May 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2017-419-000261
[2018] NZHC 1044
UNDER the Judicial Review Procedure Act 2016 and Immigration Act 2009 IN THE MATTER
of a decision under the Immigration Act 2009
BETWEEN
GURMINDER SINGH CHATHA
Plaintiff
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 27 March 2018 Appearances:
S Bhardwaj for the Plaintiff
N Copeland for the Respondent
Judgment:
14 May 2018
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 14 May 2018 at 12:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Bridge Law, Hamilton East
Meredith Connell (Office of the Crown Solicitor), Auckland
CHATHA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2018] NZHC 1044 [14 May 2018]
Introduction
[1] Gurminder Singh Chatha first entered New Zealand on 1 October 2013. He has remained in New Zealand on various visas since that date. On 23 March 2017, he applied for a work visa. It was declined on 8 August 2017. Mr Chatha now challenges that decision by way of judicial review.
Application for work visa
[2] On 23 March 2017, Immigration New Zealand (INZ) received an application for a work visa (post-study employer assisted) from Mr Chatha. It was based on an offer of employment as an assistant manager for Lal Badshahji Contracting Limited.
[3] On 31 May 2017, INZ wrote to Mr Chatha’s immigration advisor outlining its concerns with the application. INZ was not satisfied that Mr Chatha’s qualification obtained in New Zealand was relevant to the position offered or that it was a key factor in his employment.1 INZ was also concerned that Lal Badshahji Contracting Limited had previously been in breach of New Zealand employment law.
[4] On or about 9 June 2017, Mr Chatha’s immigration advisor wrote to INZ responding to the concerns that had been raised in its letter of 31 May 2017. Mr Chatha’s immigration advisor explained that Mr Chatha had been offered a new role as practice manager for Cheema Limited (the company) due to his experience in the kiwifruit industry and his local business qualification. Mr Chatha’s immigration advisor attached a new employment agreement, a job description, an employer’s supplementary form and a company flow chart.
[5] On 15 June 2017, INZ wrote to Mr Chatha’s immigration advisor advising him of two issues which may have a negative effect on his application. First of all, INZ was currently not satisfied that Mr Chatha’s offer of employment was genuine or sustainable. Secondly, INZ was currently not satisfied that Mr Chatha’s qualification was relevant to the position offered. Mr Chatha’s immigration advisor was invited to provide further information to address INZ’s concerns.
1 National Diploma in Business Level 5 from the Royal Business College.
[6] On 23 June 2017, INZ received a letter from Mr Chatha’s immigration advisor. It explained the changing nature of the company’s management. It also attached a business profile of the company, a letter from the company’s director, Mr Jagatjeet Singh, explaining the requirement for the position offered to Mr Chatha, a company flow chart and a job description of the assistant manager currently working for the company.
[7] On 8 August 2017, INZ wrote to Mr Chatha’s immigration advisor advising him that Mr Chatha’s visa application had been declined. INZ said that it was still not satisfied that Mr Chatha’s offer of employment was genuine or that his qualification was relevant to the tasks he would be undertaking on a day-to-day basis.
Approach on judicial review
[8] Leaving aside the issue of the delay in making a decision on Mr Chatha’s application, it is important to note that the burden is on Mr Chatha to show that no reasonable decision maker could have reached the views taken by INZ. This is not an appeal on the merits of the decision. An application for judicial review is concerned with the fairness of the decision making processes and not the merits of the decision reached unless it is one that no reasonable decision maker could have reached. This is an onerous standard. It reflects the fact that the court should not substitute its own view for that of the executive arm of government and the body tasked with making those decisions on a daily basis, Immigration New Zealand.
[9] In considering this issue it is also important to bear in mind s 58 of the Immigration Act 2009 which requires visa applicants to inform INZ of all relevant facts. It provides:
58 Obligation on applicant to inform of all relevant facts, including changed circumstances
(1)It is the responsibility of an applicant for a visa to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made.
(2)The Minister or immigration officer considering the application—
(a)is not obliged to seek any further information, evidence, or submissions; and
(b)may determine the application on the basis of the information, evidence, and submissions provided.
(3)It is also the responsibility of an applicant for a visa to inform the Minister or an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—
(a)may affect the decision on the application; or
(b)may affect a decision to grant entry permission in reliance on the visa for which the application is made.
(4)Without limiting the scope of the expression material change in circumstances in subsection (3), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to this Act or immigration instructions.
Discussion
[10] In its letter dated 8 August 2017 declining Mr Chatha’s visa application, INZ referred on three occasions to the lack of evidence from Mr Chatha. The lack of evidence was said to relate to:
(a)The sustainability and full time nature of the director, Mr Jagatjeet Singh’s IT business.
(b)The inability of the assistant manager, Mr Gagandeep Singh, to undertake the tasks outlined in his job description.
(c)The necessity for Mr Chatha to undertake the tasks of liaising with orchard owners, manage timesheets, set rosters, manage orchard operations, manage records, train staff and attend meetings on a day- to-day basis.
[11] As an example of the lack of evidence identified by INZ prior to its decision of 8 August 2017, it had been provided with a company flowchart and job descriptions for both Mr Chatha and the assistant manager, Mr Gagandeep Singh. The company’s flowchart clearly listed four company executives as follows:
(a)Director – Jagatjeet Singh
(b)Practice Manager (Orchard) – (vacant) offered to Gurminder Singh Chatha
(c)Assistant Manager – Gagandeep Singh
(d) Supervisor – Ravinderpal Singh It then listed 10 kiwifruit orchard workers.
[12]Mr Chatha’s job description included the following:
(a)Manage the staff recruitment and training.
(b)Manage the allocation of staff and supply of labour to the orchard and packhouse as required.
(c)Manage timesheets/rosters/payroll details from Supervisor.
[13]Mr Gagandeep Singh’s job description contained similar responsibilities:
(a)Assist the managing director in conducting personal interviews for staff hiring, undertaking responsibility of training for the short skill staff and managing the staff rosters.
(b)Assign work to the staff and look after their wellbeing and personal care needs.
(c)Organise time sheets of work carried out, and getting time sheets to the managing director on time.
[14] INZ then clearly put Mr Chatha on notice when it wrote to his immigration advisor on 15 June 2017:
We are currently not satisfied that your offer of employment is genuine as we have noted that the business currently has an Assistant Manager and an Office and Field Manager who are undertaking tasks which are included in your job description.
We are also not satisfied that with a work force of only 13 people that the business requires three management positions in addition to a company director. We are not satisfied that there will be enough business and administrative work available to sustain your position.
[15] In response INZ received two letters, both dated 22 June 2017. One was from Mr Chatha’s immigration advisor and the other from the director, Mr Jagatjeet Singh. Both letters referred to the director, Mr Jagatjeet Singh, devoting more time to an IT business and therefore requiring the services of Mr Chatha as a practice manager (orchard). As to the assistant manager’s position, Mr Jagatjeet Singh said only that he was not very experienced in handling workers, “even though he’s quite skilled, but his set of skills are different to what I had been looking for.” No mention was made of the overlap of responsibilities between Mr Chatha and Mr Gagandeep Singh, nor was there any suggestion that Mr Gagandeep Singh’s job description had been changed in any way.
[16] Subsequent to INZ’s decision to decline Mr Chatha’s visa application, Mr Jagatjeet Singh, swore an affidavit dated 17 November 2017 in support of Mr Chatha’s application for review in which he states:
The Assistant Manager who was in employment with the Company was not fit to work on actual orchard sites as he had no such experience, and was not willing to take up extra responsibilities, and that this could’ve also created a lot of stress for him.
It is still unclear whether Mr Gagandeep Singh is employed by the company and exactly what his responsibilities are.
[17] Furthermore, at no time did Mr Chatha’s immigration advisor or Mr Jagatjeet Singh tell INZ that the supervisor, Mr Ravinderpal Singh, was about to leave the company. Yet in Mr Jagatjeet Singh’s affidavit dated 17 November 2017 in support of Mr Chatha’s application for review, Mr Singh states:
It was incorrect for the INZ to assume that there were three managerial positions for the Company. I was nearly gone and that our supervisor referred to by INZ, also left for another company in August 2017. In April 2017 he gave notice of termination to us.
[18] INZ, however, was not advised the supervisor had given his notice to the company. In its letter of 15 June 2017, INZ had made it quite plain that they were not
satisfied that with a workforce of only 13 people, the business required three managerial positions in addition to the director, Mr Jagatjeet Singh. It would have been a simple matter for Mr Chatha to advise INZ of the imminent departure of the supervisor, Mr Ravinderpal Singh, if indeed he had given notice of termination in April 2017. INZ therefore assumed that Mr Ravinderpal Singh was still employed in a managerial position by the company. INZ cannot be expected to know something it was not told. That is the reason for the legislative provision in the Immigration Act imposing the burden on applicants to provide whatever material they wish in support of their application. It is not for INZ to make its own enquiries independently of the information provided by an applicant.
[19] The statement of claim lists eight grounds of review, although only seven were pursued in Mr Chatha’s written submissions. These are as follows:
Lack of valid reasons
[20] Mr Chatha says that INZ failed to give valid reasons for declining his application for a work visa as required under s 27 of the Immigration Act. No valid reasons were given as to why the employment offer was not genuine and sustainable. Further, no proper reasons were given as to why the position offered was not relevant to Mr Chatha’s qualifications.
[21] The letter from INZ dated 8 August 2017 declining Mr Chatha’s application for a work visa was two pages in length. As to the genuineness and sustainability of a job offer, it gave the following reasons:
(a)The business only had 13 staff members and already had a director, assistant manager and supervisor. INZ said that it was still not satisfied that the business required another management position.
(b)The business had been operating since September 2016 without a practice manager, which was the role envisaged for Mr Chatha. While it referred to advice that the company’s director was taking a step back from the business to concentrate on another IT business. INZ then noted that Mr Chatha had provided no evidence to show that the
director was working full time in the IT business, or that it needed his sole attention.
(c)INZ recorded Mr Chatha’s advice that the assistant manager was not experienced in handling workers, but again noted that Mr Chatha had provided no evidence to show that he was unable to undertake the tasks outlined in his job description.
[22] As to the relevance of Mr Chatha’s qualifications to the proposed job, INZ noted that with three executives and only 10 staff under them, it was unlikely that the majority of Mr Chatha’s time would be spent on administrative tasks, as the business already had an assistant manager whose roles were very similar to Mr Chatha’s and included organising time sheets, training staff, reporting to the director and assisting in managing paper work and records.
[23] INZ’s letter clearly contained reasons. Mr Chatha’s complaint appears to be that those reasons were not valid or proper. This is, however, a challenge to the merits of the decision and is not permissible in an application for review unless there are, in effect, no reasons given or the decision is one that no reasonable decision maker could have reached. In any event, I am of the view that the reasons given by INZ were valid and available having regard to the information provided to it. The fact that the information provided to INZ was incomplete cannot be visited upon INZ when s 58 imposed an obligation on Mr Chatha to inform INZ of all relevant facts, including changed circumstances.
Unreasonably high standard of proof
[24] Mr Chatha says that INZ asked him to prove matters to an unreasonably high standard of proof when he had not even commenced his employment as the company’s practice manager. In the circumstances, he says it was unreasonable for INZ to expect him or his employer to provide proof of something happening in the future. A written assertion from the employer as to the tasks that Mr Chatha would undertake on a day- to-day basis should have sufficed.
[25] I am of the view that INZ did not require Mr Chatha to prove matters to an unreasonably high standard of proof. INZ did not dismiss Mr Chatha’s job description as irrelevant to the tasks that he would undertake on a day-to-day basis. It noted, however, that many of those tasks were mirrored in the job description of the assistant manager, Mr Gagandeep Singh, and in its letter to Mr Chatha’s immigration advisor dated 15 June 2017 clearly asked for an explanation. It was not an unreasonably high standard of proof to expect Mr Chatha to explain, for instance, how and in what way Mr Gagandeep Singh’s job description had changed.
Failure to cite prejudicial information properly
[26] Mr Chatha says that in compliance with the rules of natural justice, INZ was required to properly put prejudicial information to him. On the first page of its letter dated 15 June 2017, INZ advised him that it was currently not satisfied that his offer of employment was genuine or sustainable. However, in declining his application for a work visa, INZ expected Mr Chatha to show the employment was both genuine and sustainable.
[27] Immigration instruction W2.10.10 provides that all offers of employment must be genuine and sustainable. In some cases INZ may be satisfied that an offer of employment is genuine, but not sustainable or vice versa. There are two requirements that both need to be satisfied – genuineness and sustainability.
[28] I am of the view that INZ’s letter dated 15 June 2017 did not cite prejudicial information improperly or mislead Mr Chatha in any way. At the outset, INZ stated that they were not currently satisfied that Mr Chatha’s offer of employment was genuine or sustainable. The letter then went on to provide reasons why the job offer was thought not to be genuine or sustainable. The INZ letter clearly invited comment in response as to why the job offer was both genuine and sustainable.
Factual error
[29] Mr Chatha says that it was an error of fact on the part of INZ to find that there were three managerial positions in the business. The director was not available at all to the company because of his commitment to establishing a separate IT business.
[30] As already noted, INZ’s letter of 15 June 2017 clearly stated that INZ was not satisfied that, with a workforce of only 13 people, the company required three managerial positions in addition to a company director. Mr Chatha was invited to comment and asked to provide specific information including job descriptions for all other managerial positions within the company.
[31] In response, Mr Chatha’s immigration advisor forwarded a letter dated 22 June 2017 from Mr Jagatjeet Singh, who explained why the company required a practise manager, largely on the basis that he had to devote time to a new IT business. Mr Jagatjeet Singh did not, however, give any further information regarding how much of his time was spent on the IT business and/or the company and why, despite only having a workforce of 13 people, three managerial positions were still required (excluding his position as a director). In particular, he failed to advise INZ that the assistant manager’s role had changed and that the supervisor had given his notice to quit. If he had, INZ may have viewed Mr Chatha’s application in a different light.
[32] It may be an error of fact that there were three managerial positions in the company, but it is not however an error of fact for which INZ can be held accountable given the obligation on Mr Chatha, in terms of s 58 of the Immigration Act, to advise INZ of changed circumstances.
Relevance of qualification to employment duties
[33] Mr Chatha says that no reasons were given by INZ as to which of his employment duties were not relevant to his qualifications.
[34]In its letter dated 8 August 2017 declining Mr Chatha’s application, INZ stated:
We also note that your advisor has stated that your qualification is relevant as you will liaise with orchard owners, manage timesheets, set rosters, manage orchard operation, manage records, train staff and attend meetings. While your advisor has stated that you undertake these tasks they have provided no evidence to show that you will do these roles on a day to day basis.
[35] I am of the view that this comment reflects the fact that INZ was unsure of what tasks Mr Chatha would undertake for the company given that the identified tasks were already included in the job description of the assistant manager,
Mr Gagandeep Singh. If Mr Gagandeep Singh was undertaking the identified tasks on a day-to-day basis then INZ could not be satisfied that Mr Chatha’s qualifications were relevant to the day-to-day work he undertook, whatever they may be. There is no error on the part of INZ.
Due weight not given to evidence
[36] Mr Chatha says that, given that the director, Mr Jagatjeet Singh, had recently set up another IT business, there was now a clear need for a practice manager, even though there had been no need in the beginning for extra managerial assistance. He therefore says that the fact that the employer was not available and that another manager needed to be recruited was not given sufficient weight. INZ proceeded to make a decision in a predetermined fashion.
[37] In as much as this ground of review refers to insufficient weight being given to evidence that the director, Mr Jagatjeet Singh, was unavailable to attend to the company’s business, it again challenges the merits of the decision and, unless it was a decision that no reasonable decision maker could have reached, judicial review is not available. As already noted, I am of the view that Mr Chatha was clearly put on notice that further information was required to satisfy INZ of the genuineness and stability of the job offer. The fact that INZ may have proceeded on incomplete information cannot be visited upon INZ.
[38] I am also of the view that INZ gave due consideration to all the information provided in support of Mr Chatha’s application and there is no basis to find that INZ’s weighting of factors was so out of kilter that the decision was unreasonable. There is also no evidence whatsoever that the decision was predetermined. Applicants need to provide the information to satisfy INZ that their application meets the relevant criteria.
Inordinate delay in making a decision
[39] Mr Chatha says that he applied for a work visa on 23 March 2017 and INZ took four months and 17 days to make a decision on what was a relatively straightforward application. The decision was delivered to Mr Chatha at a time when he no longer had the right to seek reconsideration of the decision under s 185 of the
Immigration Act because his interim visa had expired. This left him with no other option but to seek a judicial review from the High Court.
[40] Although Mr Chatha first applied for a work visa on 23 March 2017, I am of the view that the relevant date for the purpose of considering the time taken for a decision is 9 June 2017. This is the date of the letter from Mr Chatha’s immigration advisor advising INZ that Mr Chatha had now been offered a position with Cheema Limited after INZ had raised concerns about the job offer from Lal Badshahji Contracting Limited. In effect, this was a new application. INZ then replied less than a week later, on 15 June 2017, requesting further information from Mr Chatha. Mr Chatha’s immigration advisor then replied just over a week later, on 23 June 2017.
[41] INZ then took six weeks to make its decision on Mr Chatha’s application sending its letter of declinature to Mr Chatha’s immigration advisor on 8 August 2017. I am of the view that this is not an inordinate delay.
[42] INZ states on its website that most work visa applications are processed in 25 working days, but may take longer to process if they request more information from the applicant. In the present case, INZ took 32 working days to decide Mr Chatha’s application after receiving the information requested from him on 23 June 2017.
[43] INZ also granted Mr Chatha an interim visa while it was assessing his work visa application. Mr Chatha complains, however, that because the INZ decision was not made during the currency of his existing visa, he was denied the right to seek reconsideration of the decision under s 185 of the Immigration Act. This does not provide Mr Chatha with any substantive rights, except perhaps under the principles of legitimate expectation in that the duty to make a decision within a reasonable time has been held to be a general principle of administrative law.2 I am, however, of the view that the delay beyond the 25 working days guidance is not significant.
2 Awan v Minister of Immigration [2000] NZAR 655 (HC).
Result
[44] Mr Chatha’s application for review is dismissed. The INZ decision of 8 August 2017 was available to it on the incomplete evidence that Mr Chatha had provided. Costs are payable by Mr Chatha to INZ on a 2B basis.
Woolford J
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