Duong v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZHC 2816
•31 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001254 [2018] NZHC 2816
UNDER THE Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of decisions under the Immigration Act 2009
BETWEEN
HIEN NGOC DUONG First Applicant
MAI THI PHUONG PHAM Second Applicant
LINH PHAM GIA DUONG Third Applicant
VI PHAM TUONG DUONG Fourth Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Continued /…
Hearing: 18 September 2018 Appearances:
M Y Kim and K Kim for the Applicants
I Auld and M Urlich for the RespondentJudgment:
31 October 2018
JUDGMENT OF HINTON J
HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 2816 [31 October 2018]
CIV-2018-404-001662
UNDER THE Immigration Act 2009
INTHE MATTER OF an application under s 245 for leave to appeal a decision of the Immigration and Protection Tribunal
BETWEEN HIEN NGOC DUONG First Applicant
ANDMAI THI PHUONG PHAM Second Applicant
ANDLINH PHAM GIA DUONG Third Applicant
ANDVI PHAM TUONG DUONG Fourth Applicant
ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
CIV-2018-404-001663
UNDER THE Immigration Act 2009
INTHE MATTER OF an application under s 249 for leave to bring judicial review proceedings in respect of a decision of the Immigration and Protection Tribunal
BETWEEN HIEN NGOC DUONG First Applicant
ANDMAI THI PHUONG PHAM Second Applicant
ANDLINH PHAM GIA DUONG Third Applicant
ANDVI PHAM TUONG DUONG Fourth Applicant
ANDIMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
Continued /…
ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Respondent
This judgment was delivered by me on 31 October 2018 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
M K Law, Auckland
Crown Law, Wellington
[1] The primary matters before me are applications for leave to appeal and for leave to bring judicial review proceedings in respect of a decision of the Immigration and Protection Tribunal (the Tribunal) declining Mr Duong’s application for a residence visa under the skilled migrant category.
[2] Mr Duong has also brought judicial review proceedings in respect of a decision by Immigration New Zealand (INZ) to decline a temporary work visa under the essential skills category.
[3] The key issues raised in this case are whether INZ and the Tribunal applied the correct standard of proof, and whether the Tribunal exceeded its powers under s 188 of the Immigration Act 2009 (the Act).
[4] The second, third and fourth applicants in this proceeding were not parties to the appeal of the residence decision in the Tribunal, nor were they applicants for the grant of the temporary work visa. Accordingly, they do not have standing to bring proceedings for leave, or review, in respect of those decisions. Mr Kim, for Mr Duong, did not argue to the contrary.
Background to the Tribunal’s residence decision
[5] Mr Duong first came to New Zealand in 2013 on a student visa. In March
2016, he was granted a further post-study work visa which was employer-assisted, the employer being Traduco Vina Ltd, trading as Fresh & Save, Albany (Fresh & Save).
[6] On 20 April 2016, Mr Duong applied for a residence visa under the skilled migrant category, claiming 50 points for his employment at Fresh & Save.
[7] The relevant immigration instructions at SM7.15 provided:
Additional requirements for skilled employment
a. skilled employment only qualifies for points if the employment is:
…
ii. genuine; and
…
v. the employment was not offered as a result of payment made by the applicant (or their agent) to the employer (or their agent) in exchange for securing that offer of employment. Such practices are contrary to the principles of the Wages Protection Act 1983, as well as to immigration instructions.
[8] In a letter dated 1 May 2017, INZ raised the concern that Mr Duong’s employment may not be genuine and may have been offered as a result of payment to his employer. INZ referred to a number of transactions, including three payments in March 2015 totalling $14,000 (the March 2015 payments); three payments in November 2015 totalling $10,000 (the November 2015 payments); and nine smaller Eftpos payments, totalling roughly $2,100, made throughout 2015 (the Eftpos payments).
[9] On 22 May 2017, Mr Duong’s agent wrote to INZ with explanations.
[10] In respect of the March 2015 payments of $14,000, the agent said that the money had been paid to Fresh & Save to purchase used shop equipment. He provided various pieces of evidence, none of which directly evidenced the sale and purchase of the equipment from Fresh & Save.
[11] In respect of the November 2015 payments, these were said to have been made because Mr Duong was unable to bank his employer’s takings before 5.00 pm, a consequence of which would have been that an important meat supplier (Wilson Hellaby) would not have been paid the next day, as there would have been insufficient funds in the employer’s account. Mr Duong stated that, to ensure the payment was made, he deposited $10,000 of his own money into his employer’s account.
[12] In respect of the Eftpos payments, Mr Duong argued that these were for the purchase of groceries.
[13] On 6 October 2017, INZ declined the residence application on the grounds that it was not satisfied Mr Duong’s employment met the requirements of residence
instructions SM7.15(a)(ii) and SM7.15(a)(v) that his employment was genuine, and had not been offered as a result of payments that he had made to his employer.
[14] In respect of the March 2015 payments, INZ stated that Mr Duong had not provided any invoices or evidence to substantiate his claim of purchasing equipment from his employer. Inter alia, INZ referred to lease agreements the employer had purported to enter into for new equipment, pointing out that the timing of those agreements was different to that which the agent had set out.
[15] In respect of the November 2015 payments, INZ considered that there was evidence Mr Duong’s employer had sufficient funds to pay the Wilson Hellaby account. INZ noted an inconsistency with the amounts Mr Duong had purported to bank into his employer’s account, with $3,000 apparently not showing on the employer’s bank statement. INZ also noted that Mr Duong had not provided any evidence to show that the $10,000 had been repaid to him.
[16] In respect of the Eftpos payments, INZ stated that Mr Duong had not provided any invoices or other substantial evidence to support his claim that these payments were for groceries. INZ also noted that Mr Duong shopped at Pak n Save, which INZ considered went against the credibility of his explanation.
[17] Mr Duong appealed to the Tribunal.
[18] The grounds for an appeal to the Tribunal against a decision to decline a residence visa are twofold. The first ground is that the relevant decision was not correct in terms of the residence instructions applicable at the time.1 The second ground is that the special circumstances of the appellant are such that an exception to those residence instructions should be considered.
[19] Mr Duong appealed to the Tribunal on both grounds and failed on both grounds, but in his applications for leave he does not challenge the finding that there were no special circumstances.
[20] In its decision, dated 28 June 2018,2 the Tribunal decided to give Mr Duong the benefit of the doubt with regard to the Eftpos payments, and determined that INZ was incorrect in its assessment of the November 2015 payments, insofar as it was not open on the evidence to find that Mr Duong’s employer had sufficient funds at the relevant time, to pay Wilson Hellaby. I note in connection with the November 2015 payments, that Mr Duong applied to introduce new evidence from his wife Ms Pham, which the Tribunal declined.
[21] However, the Tribunal agreed with INZ with regard to the March 2015 payments, that Mr Duong had not established that the payments were for the purchase of equipment. On that basis, the Tribunal held that the decision of INZ to decline
Mr Duong’s residence visa application was correct because he was caught by
SM7.15(a)(ii) and SM7.15(a)(v) of the residence instructions.
Application for leave to appeal the Tribunal’s residence decision
The application itself
[22] In his application, Mr Duong sets out only two grounds for seeking leave to appeal: first, that the Tribunal erred by refusing to consider Ms Pham’s statement and second, that the Tribunal applied an incorrect standard of proof.
[23] The first ground relating to Ms Pham’s statement was abandoned at the start of the hearing, leaving only the second.
[24] However, in his submissions for the hearing, Mr Kim added a new ground – whether the Tribunal had exceeded its powers under s 188 of the Immigration Act 2009 (the Act).
[25] I therefore need to consider two grounds:
(a) Error of law by applying incorrect standard of proof.
(b) Error of law by exceeding powers under s 188 of the Act.
Law on seeking leave to appeal from the Tribunal
[26] An application for leave to appeal can only be granted if there is a question of law which is both capable of bona fide and serious argument, and by reason of its general or public importance, or for any other reason, is a question of law that ought to be submitted to this Court.3 Not every alleged error of law is of sufficient importance, either generally or to the parties, to justify further pursuit of litigation.4
[27] While there are circumstances where the Tribunal’s factual findings can be so incorrect as to constitute an error of law, Mr Duong does not argue here that there were errors of fact that were so incorrect as to constitute an error of law.
First ground – did the Tribunal apply an incorrect standard of proof?
[28] On the face of the Tribunal’s decision, it seems to have applied the correct standard of proof, namely on the balance of probabilities. The Tribunal said that INZ had reached the decision to decline Mr Duong’s application on the basis that INZ was “not satisfied” his employment was genuine because it had been offered as a result of payments made by him to his employer.5 The Tribunal’s finding was that this decision to decline Mr Duong’s residency application was correct.6 The term “satisfied”, as contained in the immigration instructions, and as generally understood, requires satisfaction on the civil standard of proof, being the balance of probabilities.7 There is nothing on the face of the Tribunal decision to suggest that it applied a higher standard, (nor on the face of the INZ decision).
[29] Mr Kim says he accepts that, in the face of payments from an employee to an employer, the employee needs to explain that the payments are not for purposes of securing employment. However, he says that is all Mr Duong was required to do. He argues that both INZ and the Tribunal were in error in requiring Mr Duong to prove that the payments were made for the reasons he provided, namely the purchase of equipment, purchase of groceries, and as a short-term advance to his employer.
3 Immigration Act 2009, s 245(3).
4 Minister of Immigration v Jooste [2014] NZCA 23.
5 VU (Skilled Migrant) [2018] NZIPT 204604 at [2].
6 At [53].
7 Fric v Immigration and Protection Tribunal [2016] NZHC 1208 at [98].
[30] It is not possible to finely divide the exercise as Mr Kim endeavours to do. INZ (and the Tribunal) were entitled to take the view in these circumstances that proving that the payments were not for employment, and proving what they were for, were two sides of the same coin. INZ obviously was not satisfied that the material provided to them met the requirements for a skilled migrant residence visa and in particular, it was concerned about the payments made to Fresh & Save. INZ asked for explanation. INZ was not satisfied with the explanation it received and therefore concluded that Mr Duong’s employment was not genuine. It is all part of the same exercise. The Tribunal then said that, although there were concerns around findings by INZ that the November 2015 payments were not genuine, it agreed with the conclusion in respect of the March 2015 payments, and that was sufficient to form the view that the employment was not genuine.
[31] I cannot discern any serious argument that the Tribunal applied an incorrect standard of proof when deciding whether INZ was correct or not.
[32] While not advanced as such, to the extent Mr Kim’s argument is an attempt to challenge the assessment made by INZ of the credibility, reliability and weight of the information and evidence provided by Mr Duong, this would not amount to a question of law. It is well accepted that the weight given to evidence is a matter for the decision-maker to determine.8 Even if it amounted to a question of law, I do not consider it gives rise to any issue of general or public importance.
[33] Mr Kim raises a related point, which he stresses is secondary, that INZ should have asked for more information if they were not satisfied with the information first provided. That, of course, is not a criticism that can be levelled at the Tribunal and it is the Tribunal’s decision for which leave is sought to appeal. In any event, it is not correct. In terms of the relevant law, an applicant for a visa has to ensure that all information they wish to have considered, is provided when their application for residence is made.9 The immigration officer considering the application is not obliged
8 Minister of Immigration v Zhang [2013] NZCA 487 at [34]; Guo v Immigration & Protection
Tribunal [2014] NZHC 804 at [55], [79] and [105].
9 Immigration Act 2009, Section 58(1).
to seek any further information, and may determine the application on the basis of the information provided.10
[34] In Fric v Immigration and Protection Tribunal, the Court held that a similar challenge to the standard of proof applied by the Tribunal did not give rise to issues of general, or public importance.11 I agree with the respondent that the same reasoning applies in this case.
Second ground – did the Tribunal exceed its powers under the Act?
[35] Mr Kim raised in his submissions a two-pronged argument that the Tribunal exceeded its powers under the Act in the process of finding that INZ was correct. I have already noted that this was not a point raised in the application for leave to appeal. I will consider this argument in any event.
[36] Mr Kim submits:
(a)First, the Tribunal substituted its own assessment of the correctness of the decision to decline a residence class visa, when it was only entitled under s 188 of the Act to determine whether INZ had made a correct decision or not; and
(b)Second, that the Tribunal failed to produce a complete decision, as it failed to respond to the entirety of Mr Duong’s submissions regarding errors in the INZ decision-making process with respect to the Eftpos and November 2015 payments.
[37] Mr Kim advances three points which, together or separately, lead him to say the Tribunal overstepped its role and substituted its own assessment of the INZ decision. These are:
(a)The Tribunal raised a new concern about the use of a descriptor “paid veges”, being the label Mr Duong gave to the March 2015 payments.
10 Immigration Act 2009, Section 58(2).
11 Fric v Immigration and Protection Tribunal [2016] NZHC 1208 at [102].
(b)The Tribunal admonished Mr Duong for failing to provide a written statement from his agent, outlining any mistakes made in the agent’s written submissions, when INZ had not requested such a statement.
(c)The Tribunal raised a new concern about Mr Duong’s employer’s declaration of the November 2015 payments as taxable income.
[38] There is no question but that the Tribunal cannot substitute its own assessment for that of INZ. However, the Tribunal did not do that here. The finding by INZ that Mr Duong’s employment was not genuine was based on its assessment of the three transaction sets. However, a correct assessment by INZ that one transaction set showed that Mr Duong had paid his employer for employment was sufficient for the Tribunal to conclude that INZ was correct to not be satisfied that Mr Duong’s employment was genuine.
[39] Turning to the three specific “overstep” points raised by Mr Kim, the descriptor “paid veges”, was on the face of the decision a passing observation by the Tribunal, which I consider did not have any effect on the Tribunal’s ultimate decision that INZ was correct to decline Mr Duong’s residence application. On the basis of the factors that INZ did consider, and to which the Tribunal referred, there was sufficient material for the Tribunal to determine that INZ had made a correct decision. Therefore, even if the Tribunal did overstep the mark in bringing such a concern to light, I do not consider such an error to be of sufficient general importance to justify granting leave for an appeal.
[40] In respect of (b), I do not accept that the Tribunal was “admonishing”
Mr Duong for failing to provide it with a written statement from his agent clarifying any mistakes. Mr Kim was arguing that the agent had made mistakes. The Tribunal simply commented that if the agent had made a mistake, it had not been provided with a written acknowledgement from the agent to that effect. The Tribunal was simply pointing out there was nothing to back up Mr Kim’s submission. That is not overstepping INZ. The Tribunal’s finding that the decision of INZ was correct was clearly not influenced by any failure, on Mr Duong’s part, to provide a statement from his agent.
[41] As to (c) above, the Tribunal found that the decision of INZ was correct on the basis of the March 2015 payments, so the point concerning the November 2015 payments can have had no ultimate effect on the outcome of the appeal. The Tribunal held that INZ was entitled to find that Mr Duong’s employment was not genuine, on the basis that INZ was not satisfied that the March 2015 payments were not for the purposes of securing employment, despite giving the benefit of the doubt to Mr Duong regarding the Eftpos payments, and finding that INZ was incorrect in its assessment of the November 2015 payments.
[42] None of the arguments that the Tribunal exceeded its jurisdiction under s 188 raises a question of law capable of bona fide and serious argument, which by reason of its general or public importance, should result in leave being granted. The Tribunal did not substitute its own assessment for that of INZ, but instead upheld the correctness of the INZ decision, albeit on a narrowed basis. The Tribunal accepted that on the basis of the evidence that INZ considered regarding the March 2015 payments, INZ was entitled to refuse Mr Duong’s application, because it could not be satisfied that his employment was genuine.
[43] In respect of Mr Duong’s second argument under this head (failing to produce a complete decision by failing to respond to issues relating to the Eftpos and November
2015 payments), again the Tribunal’s finding that INZ was correct, rested on the correctness of the assessment by INZ of the March 2015 payments. Not considering points relating to the other two categories of payments, cannot be said to constitute an error of law that is seriously arguable or of sufficient general importance to warrant granting leave for an appeal.
Conclusion on application for leave to appeal the Tribunal’s residence decision
[44] It follows from the above that I do not consider that Mr Duong has made out any grounds for leave to appeal.
Application for leave to review the Tribunal’s residence decision
The application itself
[45]Mr Duong’s application for leave to review sets out three grounds: (a) The Tribunal failed to properly consider relevant matters. (b) The Tribunal took into account irrelevant matters.
(c) The Tribunal exceeded its powers under s 188 of the Act.
Law on seeking leave for judicial review of the Tribunal decision
[46] For leave to be granted to bring judicial review proceedings in respect of a decision of the Tribunal, s 249 of the Act requires the Court to have regard to three matters. The first is whether the proposed review proceeding involves issues that could be adequately dealt with in an appeal against the Tribunal’s decision.12 If the issue can be dealt with in an appeal, then leave to bring judicial review proceedings is unlikely to be granted.13 Secondly, there must be a question capable of bona fide and serious argument.14 The third consideration is whether the issues in the judicial review proceeding, by reason of their general or public importance, or for any other reason, ought to be submitted to the High Court for review.15
Did the Tribunal fail to consider relevant matters?
[47] Mr Duong’s first ground for seeking leave to review the Tribunal’s decision raises two “relevant matters” which he says the Tribunal failed to take into account. These are:
(a)The Tribunal failed to consider Mr Kim’s submission to it that INZ had not properly considered the evidence on the balance of probabilities.
12 Immigration Act 2009, s 249(6)(a).
13 SK v Immigration & Protection Tribunal [2015] NZCA 26 at [13].
14 Although this point is not expressly addressed in s 249, see Kumar v Minister of Immigration
[2016] NZHC 1593 at [35]; and Allada v Immigration and Protection Tribunal [2014] NZHC 953.
15 Immigration Act 2009, s 249(6)(b).
(b)The Tribunal failed to identify a number of errors in respect of the November 2015 payments and the Eftpos payments. Alternatively, if the Tribunal did identify those errors, it did nothing to remedy them.
[48] The first point would be properly considered, as I have above, as a ground of appeal. A failure to consider a submission is not a relevant matter for purposes of judicial review.
[49] I have already found that there is no serious argument that INZ or the Tribunal applied the incorrect standard of proof. Given that, there can be no serious argument or important point of principle flowing from a failure to explicitly consider a submission to that effect, even if there were such a failure.
[50] Considering the Tribunal’s extensive reasoning as to why INZ was entitled to not be satisfied by Mr Duong’s explanation for the March 2015 payments, and was therefore correct in rejecting his application, I do not think it seriously arguable that the Tribunal failed to consider the appropriate standard of proof, or whether that had been applied by INZ.
[51] In respect of Mr Duong’s second argument, those errors he claims the Tribunal failed to identify in respect of the November 2015 payments and the Eftpos payments are:
(a) The Tribunal did not identify that the conclusion of INZ concerning the
Eftpos payments was unreasonable, as it was made on the basis that
Mr Duong appeared to shop at Pak n Save.
(b) The Tribunal did not identify that INZ was mistaken in finding that
$3,000 of the November 2015 transaction was unaccounted for.
(c)The Tribunal identified, but did not remedy, the mistaken finding by INZ that Mr Duong’s employer had sufficient funds to pay the Wilson Hellaby account.
[52] Mr Duong’s second argument is in effect the same as his argument for seeking leave to appeal. The Tribunal did not expressly make any finding as to the errors by INZ on which Mr Duong relies. But that is irrelevant because the Tribunal did “remedy” them in the sense that the Tribunal held that Mr Duong would be given the benefit of the doubt for the Eftpos payments and, in respect of the November 2015 payments, it did not need to resolve the issues surrounding those payments as it held the application was in any event declined correctly on other grounds, namely the concerns surrounding the March 2015 payments. Therefore, if those matters referred to by Mr Duong are errors, they were in any event “remedied” by the Tribunal’s ultimate determination.
[53] Therefore, even if the Tribunal should have expressly considered the “relevant matters” raised by Mr Duong, a failure to do so cannot be said to be seriously arguable or of sufficient importance to justify referral to the High Court for review.
Did the Tribunal consider irrelevant matters?
[54] Under the second ground for seeking leave to review the Tribunal’s decision, Mr Kim raises just one point. He argues that the Tribunal took into account an irrelevant matter, being whether the November 2015 payments were correctly declared by Mr Duong’s employer as taxable income. Mr Kim points out that this was not considered by INZ and was raised for the first time by the Tribunal.
[55] While I accept that the Tribunal’s taking into account something which INZ has not considered does constitute taking into account an irrelevant matter, I do not consider that the test for leave is met.
[56] Again, bearing in mind that the Tribunal ultimately determined that INZ correctly declined Mr Duong’s application on the basis of the March 2015 payments, an issue regarding the November 2015 payments cannot be said to be of sufficient importance to justify granting leave to review. Any error of the Tribunal in considering the November 2015 payments cannot have had any effect on the ultimate outcome of Mr Duong’s appeal.
Did the Tribunal act ultra vires under s 188 of the Act?
[57] Mr Duong’s third ground for seeking leave to review the Tribunal’s decision is a repeat of his final ground for seeking leave to appeal, namely that the Tribunal exceeded its appellate jurisdiction under s 188 of the Act by substituting its own assessment for that of the decision of INZ in declining Mr Duong’s appeal.
[58] While I accept that this point is more appropriately dealt with as a ground for judicial review, for the same reasons set out above at paragraphs [38] to [43], dealing with the same argument on the application for leave to appeal, this ground also fails. The question is not capable of bona fide or serious argument and does not give rise to a question of general or public importance.
Conclusion on application for leave to review the Tribunal’s residence decision
[59] I cannot identify any grounds which would merit leave being granted for judicial review of the Tribunal’s residence decision.
Application for judicial review of INZ work visa decision
Background
[60] On or about 20 March 2018, following the decision of INZ not to grant him a residence visa, but prior to his appeal to the Tribunal being determined, Mr Duong applied for a work visa under the essential skills category. His application was based on an offer of employment from Fresh & Save.
[61] The immigration officer assigned by INZ considered the application and supporting information. She also considered Mr Duong’s bank statements, which had been provided in the course of his previous application for a residence class visa.
[62] INZ notified Mr Duong on 8 May 2018 that the same transactions identified in the course of his residence visa application gave rise to concerns that his employment at Fresh & Save was not genuine.
[63] On 16 May 2018, Mr Duong’s solicitor wrote to INZ, responding to the concerns surrounding Mr Duong’s employment. The letter explained each of the relevant transactions on the same basis as they had been explained in the course of the residence application, except:
(a)In respect of the March 2015 payments (alleged to be for the sale and purchase of equipment), the solicitor provided a tax invoice apparently dated 14 March 2015, and a letter from a truck driver who claimed to have helped deliver the equipment to Mr Duong’s home.
(b)A different account was provided of the circumstances leading to the November 2015 payments. Previously, Mr Duong’s former agent had said that the matter had been discussed between Mr Duong and his employer, before Mr Duong had transferred the money. The solicitor offered a different account, stating that Mr Duong had been unable to discuss the matter with his employer and had decided to transfer the funds.
(c) A letter was attached from Mr Duong’s employer, dated 8 November
2017, stating that no money was received from Mr Duong in exchange for his employment.
[64] On 21 May 2018, INZ responded. In respect of the March 2015 payments, INZ noted that evidence had been put forward, but INZ was still not satisfied that this evidence mitigated their concerns. Erroneously, INZ said that Mr Duong had still not provided any invoices or evidence to substantiate his claim of purchasing the equipment from his employer. In respect of the Eftpos payments, INZ stated that
Mr Duong had not provided any invoices to substantiate his claim that these transactions were for the purpose of purchasing groceries. Similarly, in respect of the November 2015 payments, INZ stated that Mr Duong had not provided any evidence to substantiate his claim that the money was a loan to his employer. INZ asked for further information.
[65] Mr Duong’s solicitor responded on 29 May 2018. The solicitor noted that a tax invoice had been provided by Mr Duong in respect of the March 2015 payments, and that the only reason this had not been provided earlier, with the residence application, was that the employer’s accountant was unable to retrieve it from the archives. Additionally, the solicitor argued that the previous agent’s statement to the effect that Mr Duong had purchased the equipment from his employer prior to the dates in the lease documents was clearly in error. The solicitor also argued that it would be unreasonable to expect Mr Duong to keep invoices of his purchase of groceries from his employer. The solicitor also stated that he had been mistaken in his previous letter and that Mr Duong had not spoken with his employer before making the November 2015 payments.
[66] On 31 May 2018, INZ declined Mr Duong’s work visa application, providing the following reasons:
(a)In respect of the March 2015 payments, INZ acknowledged the invoice and delivery driver’s letter, but stated these were insufficient to mitigate its concerns. The evidence was not credible and was insufficient to show that Mr Duong had purchased equipment from his employer. INZ noted Mr Duong’s claim that his former agent had made a mistake when providing evidence on the date of the purchase of the equipment. It also stated that concerns remain as to why the employer’s accountant had such difficulty in retrieving an invoice from 2015, such that it was not provided earlier.
(b)In respect of the Eftpos payments, INZ noted that it may not be possible to provide invoices to substantiate Mr Duong’s claims. However, in the absence of other evidence, and while concerns about the larger payments remain, INZ could not be satisfied that the concerns regarding those Eftpos payments had been mitigated.
(c)In respect of the November 2015 payments, no further information or evidence had been provided to substantiate Mr Duong’s claim that he was reimbursed by the employer, and that the evidence was insufficient
to substantiate his claim that the purpose of his payment was to pay the employer’s debt.
The application itself
[67] In his application for review, Mr Duong raises four grounds of judicial review, in relation to the decision of INZ to decline his work visa application. These are:
(a) Error of law by applying the incorrect standard of proof;
(b) Mistake of fact (flawed factual reasoning); (c) Failure to consider relevant information; and (d) Unreasonableness.
First ground – error of law by applying the incorrect standard of proof
[68] Mr Kim argues that INZ erred by applying an incorrect standard of proof, above that required by law, when determining whether his offer of employment was genuine. In particular he argues that:
(a)In dealing with the March 2015 payments, INZ isolated each piece of evidence and concluded no single piece of evidence sufficiently supported his claim.
(b)In dealing with the Eftpos payments, INZ refused to consider the circumstances of the payments, being that they were made by Eftpos, were small sums, were ranging in amount, and that Mr Duong had made similar purchases before he began his employment.
(c)That when considering the November 2015 payments, INZ did not indicate whether it considered the employer’s letter, which stated that Mr Duong had not paid any money in order to secure employment.
[69] He submits that the approach INZ should have adopted was to assess whether on the balance of probabilities, the strength of the evidence suggested it was more likely than not that the transactions were genuine.
[70] I am in agreement with the respondent that Mr Duong’s argument seems to be that INZ cannot have applied the correct standard of proof, as had they done so, they would have found for Mr Duong.
[71] There is nothing in the reasoning of INZ that suggests to me that they have adopted a standard of proof higher than the balance of probabilities.
[72] I agree with the respondent that it is clear that INZ considered that the payments from Mr Duong to his employer provided prima facie evidence that
Mr Duong had paid for his employment. Moreover, based on the assessment by INZ of the credibility, reliability and weighting of that evidence, matters which are entirely in their domain, they considered that the evidence provided by Mr Duong was insufficient to mitigate against those concerns.
[73] In terms of whether INZ considered the employer’s letter, the decision records that INZ had read and considered Mr Duong’s response. INZ was not required to individually refer to each piece of information. In any event, what was said in that decision in connection with the November 2015 payments was correct. No further evidence had been provided to substantiate the claim that Mr Duong’s payment was
to satisfy the employer’s debt and that he had subsequently been reimbursed. The employer’s letter did not constitute such evidence.
[74] I therefore consider that Mr Duong has failed to make out that the decision of INZ, declining his application for a temporary working visa, was made under error of law.
Second ground – mistake of fact (flawed factual reasoning)
[75] Although referred to in the application, this argument was not included in submissions for Mr Duong. In any event, I consider it can be dealt with shortly.
Mr Duong argues that in respect of the March 2015 payments, INZ did not properly
consider the explanation that Mr Duong’s former agent had made a mistake when providing an explanation surrounding the dates of purchase of the equipment.
[76] I do not consider that INZ has made a mistake of fact. In its decision, INZ did aver to the explanation that the former agent of Mr Duong had made a mistake when setting out the dates for the leasing of the new equipment by the employer. The assessment of the weight to be placed on that explanation was a matter for INZ. The explanation provided by Mr Duong’s solicitor was not supported by a statement from the former agent that it was a mistake.
[77] I therefore consider that Mr Duong has failed to make out that the decision of INZ, declining his application for a temporary working visa, was made on the basis of a mistake of fact.
Third ground – failure to consider relevant information
[78] Mr Duong contends that the finding by INZ that the information supplied to explain the transaction sets was insufficient, constituted a failure to consider all relevant information. In particular, Mr Duong argues that:
(a)INZ dismissed the tax invoice and delivery driver’s letter without reasons and without having made verification attempts.
(b)INZ dismissed the circumstances surrounding the Eftpos payments, despite acknowledging receipts could not be provided.
(c)INZ incorrectly claimed Mr Duong provided no further information or evidence in relation to the November 2015 payments, when in fact
Mr Duong had provided a letter from his employer stating no payments had been made for the purposes of securing employment.
(d)Together, these amount to a failure to meet the standards of fairness and natural justice.
[79] As to (a), this is not a failure to consider relevant information. INZ did consider the invoice and delivery driver’s letter. Clearly, based on the reasoning in the decision to decline, INZ was not satisfied by the invoice as concerns existed as to why it had been so difficult for the accountant to find and provide the invoice earlier. While an explanation had been provided, INZ was entitled to assess the strength and credibility of that explanation, which is what it in fact did.
[80] I also do not consider that INZ failed to consider relevant information by deciding not to verify the delivery driver’s account with him. INZ averred to the delivery driver’s letter in its decision to decline, stating that it was not sufficient to mitigate concerns. I do not consider that INZ was obliged to go any further than that letter to satisfy themselves of its veracity.16 It follows that I do not consider contacting the delivery driver in person to have been relevant to the decision-making process of INZ.
[81] In relation to (b), I do not accept that INZ ignored the circumstances surrounding the Eftpos payments. The assessment by INZ of Mr Duong’s explanation for those payments took account of the fact that it would have been difficult, if not impossible, for him to provide invoices. Fundamentally, the decision of INZ was clearly impacted by the assessment of his overall credibility, which in light of concerns surrounding the other two sets of transactions, was diminished in the view of INZ.
[82] In relation to (c), Mr Kim says INZ “incorrectly claimed” that no further information or evidence had been provided by Mr Duong in relation to the November 2015 transactions, when in fact a letter from Mr Duong’s employer had been provided to INZ stating that Mr Duong had not paid for his offer of employment.
[83] This point is unfairly made. INZ did not claim that no further evidence had been provided “in relation to the November 2015 transactions”. INZ said, as I have already noted, that no further evidence had been provided to substantiate Mr Duong’s claims that the purpose for his payment was to pay the employer’s debt and that he was subsequently reimbursed. That statement is correct. The letter provided by
Mr Duong’s employer does not constitute such evidence.
16 Immigration Act 2009, s 58(2)(a) and (b).
[84] In relation to (d), Mr Kim says that INZ failed to consider the information before it and that this amounts to a failure to meet the standards of fairness and natural justice. As I have found that INZ did consider the information before it that was relevant, it follows that there was no failure to meet the standards of fairness and natural justice on such a basis.
[85] I therefore consider that Mr Duong has failed to make out that the decision of INZ, declining his application for a temporary working visa, was made as a result of failing to consider relevant information.
Fourth ground – unreasonableness
[86] Mr Duong’s final ground for reviewing the decision of INZ is that the decision was reached unfairly on the basis of the foregoing, and is therefore unreasonable in Wednesbury terms.17 In particular, Mr Duong argues that:
(a)The decision to decline was based upon conclusions that the transactions were not for the purposes he claimed them to be.
(b)Those conclusions were materially affected by the failure of INZ to apply the correct standard of proof and consider all relevant information.
(c) The conclusions were therefore unlawful.
(d) The result was an unreasoned decision that was unreasonable.
[87] On the basis of the foregoing, I am in agreement with the respondent that the decision of INZ to decline Mr Duong a work visa was reasonable in Wednesbury terms. I do not consider that the conclusions of INZ were reached on the basis of the incorrect standard of proof and therefore resulted in a decision that was either unlawful or improperly reasoned.
17 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230;
WK v Refugee and Protection Officer [2018] NZCA 258 at [51].
[88] I therefore consider that Mr Duong has failed to make out that the decision of INZ, declining his application for a temporary working visa, was unreasonable
in Wednesbury terms.
Conclusion on application to review INZ work visa decision
[89] None of the four grounds advanced by Mr Duong, for review of the decision of INZ to decline his temporary work visa application, have been made out.
Result
[90] Mr Duong’s application for leave to appeal the decision of the Tribunal, confirming the decision of INZ declining his application for a residence visa, is dismissed.
[91] Mr Duong’s application for leave to judicially review the same decision of the
Tribunal is also dismissed.
[92] Mr Duong’s application for judicial review of the INZ decision, declining his application for a temporary work visa, is also dismissed.
[93] The respondent sought 2B costs and disbursements in the event it was successful. I consider that to be appropriate and order that 2B costs be paid by
Mr Duong to the respondent. Counsel are expected to resolve this between themselves. If not, the respondent can file submissions within 20 working days of this decision, with Mr Duong to file a response within 10 working days after.
-------------------------------------------- Hinton J
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