Li v Immigration and Protection Tribunal
[2018] NZHC 174
•18 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2017-404-754 [2018] NZHC 174
UNDER the Immigration Act 2009 BETWEEN
TINGJIA LI Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
Defendant
CIV 2017-404-755
BETWEEN TINGJIA LI Appellant
ANDTHE CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 3 August 2017
Further submissions from Appellant: 18 October 2017
Further submissions from Respondent: 9 November 2017Counsel:
M Chen and H Pryde for Mr Li
S Earl for Chief ExecutiveJudgment:
18 February 2018
JUDGMENT OF DUFFY J
This judgment was delivered by me on 18 February 2018 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
LI v IPT & MBIE [2018] NZHC 174 [18 February 2018]
[1] On 27 September 2017, I delivered an interim judgment in which I provided the applicant Mr Li with an opportunity to amend the leave applications.1
[2] Mr Li has now taken advantage of that opportunity. He has filed: (a) an amended application for leave to bring judicial review proceedings along with a draft statement of claim; and (b) an amended notice of appeal along with a draft notice of appeal. Each set of material raises new grounds for challenging the decision of the first respondent (the Tribunal). Mr Li has also filed submissions in support of the amendments.
[3] The Crown has filed submissions opposing Mr Li’s new grounds of challenge on the following bases: (a) none of the new grounds are arguable; and (b) they do not raise matters of general or public importance, or disclose any other reason to justify the grant of leave.
[4] The background facts are set out in my interim judgment of 27 September
2017. Pertinent facts will be repeated where relevant in this judgment.
New grounds of challenge
[5] As summarised in Mr Li’s supplementary submissions, the amended grounds of appeal and amended grounds for judicial review are, in essence:
(a) Immigration New Zealand (INZ) denied Mr Li a proper opportunity to be heard in breach of natural justice by failing to make it clear how it proposed to re-assess Mr Li’s application and why it required the updating information about his business (and therefore his ability to meet the requirements of Immigration instruction BH.4.10.)
(b)The Tribunal erred in failing to identify that a breach of natural justice had occurred in relation to the failure in (a) above.
1 Li v Immigration and Protection Tribunal [2017] NZHC 2354.
(c) The Tribunal erred by failing to give Mr Li the opportunity to inform the Tribunal on the current position of his business, therefore compounding the breach of natural justice.
(d)The Tribunal breached natural justice by reaching conclusions that there was no evidence to support.
(e) The Tribunal erred by failing to take into account the fact the INZ had not informed Mr Li beforehand about the basis on which his application would be assessed.
(f) The Tribunal erred in that it pre-determined what Mr Li’s circumstances were.
[6] Mr Li submits that individually or cumulatively the above errors have resulted in a miscarriage of justice such that the Tribunal’s decision must be set aside in its entirety and the application considered afresh.
[7] The second respondent (Chief Executive) makes a three-pronged attack on
Mr Li’s amended grounds of appeal and review:
(a) the Chief Executive contends there was no underlying breach of natural justice by INZ when it requested updated information from Mr Li;
(b)if there was an underlying breach of natural justice by INZ then the Tribunal dealt with it appropriately and did not compound any error on the part of INZ or fail to take into account relevant considerations, or came to conclusions without evidence; and
(c) on a separate thread from the alleged breach of natural justice the Tribunal did not err in the other ways alleged, specifically in reaching conclusions in a pre-determined way or acting in a discriminatory way.
Approach to application for leave
[8] Applications for leave to appeal and judicially review immigration decisions are governed by ss 245 and 249 of the Immigration Act 2009 (the Act) respectively. On an application for leave to appeal, the applicant must establish a seriously arguable question of law which either:2
(a) has general or public importance, meaning importance extending beyond the particular case; or
(b) for some other reason, warrants a decision from the High Court.
[9] On an application for leave to judicially review, the Court must have regard to:3
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b)if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[10] The “any other reason” limb of s 249 refers to “exceptional circumstances involving individual justice to such an extent that the Court could not countenance the first instance decision standing”.4
[11] As Heath J recognised in Hu v Immigration and Protection Tribunal in relation to s 249:5
The policy underlying the restrictions imposed is based on the need for prompt decisions to be made when immigration status is in issue, and the desirability
2 Immigration Act 2009, s 245; Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
3 Section 249(6).
4 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977 at [10] citing Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591.
5 Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [11].
of limiting such proceedings to those that are truly worthy of consideration by the Court. Yet, that policy must be considered against the important role that the remedy of judicial review plays within New Zealand's constitutional structure. It is the means by which citizens can challenge executive decisions on grounds of illegality or irrationality [or breach of natural justice].
(footnote omitted)
Relevant facts
[12] Mr Li applied for a residence visa under the entrepreneur category on 3
December 2014. In October 2015 INZ initially found the business Mr Li had started in New Zealand met the criteria for this visa category. However, the application was then declined on the ground Mr Li was not of good character. Mr Li appealed to the Tribunal against this finding. The Tribunal found that INZ had not followed a fair and correct process in determining whether Mr Li was of good character.6 It allowed the appeal on 24 June 2016 and referred the matter back to INZ for reconsideration. It directed at [94] that Mr Li’s application was “to be reassessed … in accordance with the instructions in existence at the date the original application for residence was made”. Thus the application was to be reassessed according to the criteria in force as at 3 December 2014.
[13] Mr Honeywill, a business immigration specialist at INZ, subsequently sent
Mr Li two letters dated 23 August 2016. One concerned the character requirements for Mr Li’s residence class visa application (which is not relevant to this application) and the other concerned business requirements. The latter erroneously stated:
You lodged your application for residence on 19 July 2016 and therefore we must determine your application for a residence class visa in accordance with residence instructions applying at the time your application is made … I have attached relevant immigration instructions at the end of this letter for your reference. (emphasis added).
[14] The letter went on to state that INZ had concerns about Mr Li’s business meeting visa requirements, and to request the business’ “latest financial statements”; the “latest employer monthly schedules”; an “update on current employment levels and the employment contracts of current employees along with evidence of their
immigration status”; “updated GST returns”; and “income tax returns”. No-one
6 Re Li [2016] NZIPT 203262.
disputes this letter was expressed in a way that led Mr Li to believe the request for updated information was so that his application could be assessed as at July 2016.
[15] The letter explained that if Mr Li did not provide the requested information, INZ would decide the application “based on the information that [it had] so far”. It warned that INZ was “unlikely to approve [Mr Li’s] application if it [was] assessed solely on the information [he had] provided so far”. The relevant immigration instructions were attached to the letter, including the following:
R5.20.1 Further information
See also Immigration Act 2009 ss 58, 93, 158
a. Further information may be submitted at any time before a final decision is made on an application …
…
c. If applicants do not respond within the specified time to a request from an immigration officer for further information, evidence or documents, or an interview, the application may be assessed on the relevant information then available to INZ, unless it is reasonable to enquire further.
d. Applicants must inform 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:
i. may affect the decision on the application; or
ii. may affect a decision to grant entry permission to the holder of a visa.
[16] Mr Li replied on 31 August 2016. Regarding the requested information about his business, he said:
You are mentioning that my residence application was logged on 19 July 2016, it’s definitely wrong and I deem this is typically a factual mistake and also a procedure error. The ONLY residence application I had submitted to INZ in my life was lodged on 3 December 2014 …
Consequently all required information and supporting documents had been provided to INZ along with my application at that time …
In addition, IPT’s determination … clearly stated that the reassessment must be in accordance with instructions inexistence at the date the original application for residence was made. There is nothing ambiguous here that what INZ must do is reassessing my original application dated December 2014 instead of accessing a ‘new application’ … Thus requiring such information
is unreasonable, contrary to both principle of fairness and correct procedure
…
Therefore I do not believe that I need to provide the requested information because of following,
• The request is based on a wrong foundation, namely INZ is treating the reassessment as a new application in contrary to the fact and IPT’s direction; and
• The information requested had been assessed by INZ with my original application and all of them were deemed good which clearly recorded in
the OIA files I sought from INZ.
[17] Mr Honeywill responded to Mr Li’s letter on 26 September 2016. Relevantly on the subject of the requested information, he wrote:
Based on the information provided to date we currently have concerns regarding your application meeting all of the relevant instructions in order to be approved. We considered your response which as in summary was that you claimed we had incorrectly stated a lodgement date and therefore weren’t required to provide further evidence as you claimed all of the previous information had been assessed by the last case officer. We are unable to be satisfied that this adequately addressed our concerns. While the last case officer may have undertaken assessment the case has been re-referred for further assessment. In assessing the application we need to be satisfied that you meet all the residence criteria …
We therefore have to be satisfied that the business is still operational and that all applicant’s [sic] meet the required standard of health. We also note that it is a requirement that you up date us of any material change that may affect your application.
We also note that the tribunal requested that we undertake correct assessment in terms of the applicable residence instructions, and stated in that “[94] It should be noted that while these directions must be followed by Immigration New Zealand, they are not intended to be exhaustive and there may be other aspects of the application that require further investigation, remain to be completed or require updating.” …
We have looked at the information provided to date and note that it does not appear to show a current picture of your business. The financial statements provided are for the year 31/03/2015. A long time has passed since these results were current.
(emphasis added)
[18] Mr Honeywill went on to make a renewed request for the information sought in the first letter. However, nowhere in the letter did he acknowledge the error he had made in his earlier letter regarding the assessment date for Mr Li’s application.
[19] On the same date, 26 September 2016, Mr Honeywill sent a further letter stating that INZ had concluded on the balance of probabilities that Mr Li did not meet the good character requirements.7
[20] Mr Li responded to both letters on 30 September 2016. Regarding the further information INZ sought about Mr Li’s business, Mr Li reiterated that his application was made on 3 December 2014, not 19 July 2016, and that his application was to be reassessed in accordance with the original immigration instructions applicable at 3
December 2014. He further said:
INZ has failed to identify its errors in deciding the lodgement date of my residence application …
All required information and supporting documents regarding my business … had been provided to INZ and after assessment of the previous case officers with satisfactory results … We have already met/passed all the relevant immigration instructions in relation to the business … but INZ is erroneous to conclude that a further assessment of my business … is necessary after that …
[21] In response to Mr Honeywill’s reference to paragraph [94] of the Tribunal’s earlier decision, Mr Li wrote:
I understand IPT expressly stated that other aspects of the application that require further investigation, remain to be completed or require updating can be requested. I believe INZ has wrongfully interpreted the direction of IPT. From my interpretation, other aspects of the application means anything that INZ has not satisfied or has not completed in accordance with the assessment made by the previous Immigration Officer(s). If the intention of IPT is to reassess all information that was previously approved by INZ, then IPT would not request INZ to conduct a reassessment but requesting me to lodge a new application.
[22] Then followed the key passage in which Mr Li made it clear that he did not refuse to provide the updating information, but did not believe INZ had a proper legal basis to request such information:
I wish to make it really clear to INZ that it is not that I refuse to provide information/document to INZ. In contrary I have been actively cooperating with INZ all along with high efficiency. Just because this time’s request is based on a definitely wrong foundation as well as prejudice and arrogance of
the power, I don’t believe I need providing [sic] the said information.
7 This decision was also the subject of appeal to the Tribunal. However, because the Tribunal dismissed the appeal on the ground of Mr Li’s business no longer satisfied INZ’s requirements the Tribunal did not deal with this other aspect of the appeal.
[23] Despite Mr Li’s response, without further ado on 18 October 2016 INZ declined Mr Li’s application for residence. It stated that it was unable to be satisfied that his business benefits New Zealand significantly by the creation of sustained and ongoing full-time employment for one or more New Zealand citizens or residents. It further stated:
We considered your response along with all the reasoning you gave with respect you [sic] believing that you do not need to provide the said information. We are however unable to be satisfied that your response addressed our concern. We accept that the IPT did state that the application was to be assessed against the relevant instructions inforce [sic] on 3
December 2014, as such we raised our concerns to you on 26 September 2016. We note a significant period of time had passed since your initial employment
information was provided. You have been given the opportunity to provide an
update on the employment levels however you have declined to provide any substantive evidence.
[24] This letter is the first time INZ expressly acknowledged Mr Li’s application was to be assessed in accordance with instructions in force as at 3 December 2014. By the time Mr Li received this letter it was too late for him to respond further to INZ as the decision refusing residence was already made.
Is there an underlying breach of natural justice by INZ?
Submissions
[25] No-one disputes Mr Li misunderstood his obligations to provide updating information. He submits that he was set on this wrong track by INZ’s statement in its letter of 23 August 2016, which erroneously informed him that he had lodged his application on 19 July 2016 and that INZ would determine the application in accordance with residence instructions applying at that time. Mr Li contends that he mistakenly inferred from the subsequent correspondence from INZ that it continued to adhere to its earlier erroneous view that his application would be reassessed as if it had first been made in July 2016. He says this explains why he refused to provide the information requested: he was not being obstructive; he simply believed that INZ was wrong in law in asking for further information. He submits that this is understandable given his previous history with INZ, including the fact that one of its decisions had already been found unlawful by the Tribunal.
[26] Mr Li maintains that INZ was aware of his misapprehension, but failed to take any steps to correct his understanding. Rather, it simply reiterated the need for Mr Li to provide further information. As a result, Mr Li did not understand the relevance of the updating information or the basis upon which it was being requested. Mr Li submits this means that INZ denied him a proper opportunity to be heard and accordingly breached natural justice.
[27] In response, the Chief Executive submits that any alleged breach of natural justice by INZ arises for consideration on a limited and specific basis, as the focus of this leave application is the Tribunal’s decision, not INZ’s actions. However, the Chief Executive contends that INZ’s actions did not constitute a breach of natural justice. He says that INZ required the updated information, asked for it repeatedly, and Mr Li did not provide it. He says there is no causal link between INZ’s actions and Mr Li’s failure to provide the updated information. His confusion did not stem from INZ’s communications, which made it clear that the further information was required.
[28] Alternatively, if a breach of natural justice did occur, the Chief Executive contends that nothing turns on that breach as Mr Li had a statutory obligation to provide the information under s 58 of the Act.
Discussion
[29] Natural justice, is a well-established ground of judicial review; it is essentially concerned with procedural fairness in decision-making. It is a flexible concept; its requirements depend on circumstances and practicalities.8 It has been recognised that the more significant the decision, the higher the standards of fair treatment required, and further that “[in] cases involving immigration status, natural justice requires high standards of fairness because of the profound implications on the lives of those affected”.9 A key principle of natural justice is that the party is given an opportunity to be heard, which includes a reasonable opportunity to present their case and
reasonable notice of the case they must meet.10
8 Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994 at 22.
9 Noa v Minister of Immigration HC Wellington CIV-2010-485-659, 30 September 2010 at [8].
10 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009]2
NZLR 56 at [11]; Noa v Minister of Immigration, at [8].
[30] Section 58 of the Act makes applicants responsible for providing INZ with all information relevant to their applications (and updating information where relevant):
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.
(5) For the purposes of sections 157 and 158, an applicant is treated as having concealed relevant information if he or she fails to comply with the obligation in subsection (3).
(6) It is sufficient ground for the Minister or an immigration officer to decline to grant a visa to a person if the Minister or officer is satisfied that the person,—
(a) whether personally or through an agent, in applying for the visa submitted false or misleading information or withheld relevant information that was potentially prejudicial to the grant of the visa; or
(b) did not ensure that an immigration officer was informed of any material change in circumstances to which subsection (3) applies between the time of making the application and the time of a decision on the application.
[31] Section 58 has been described as placing a “duty of candour” on the applicant,11 as immigration authorities depend upon applicants being scrupulously honest in disclosing their personal circumstances.12
[32] There is no doubt that Mr Li misunderstood his s 58 obligation to provide updating information. The crucial factual question, which is yet to be answered, is whether INZ caused or perpetuated Mr Li’s misapprehension in some way.13 If INZ’s erroneous statement about the date on which Mr Li’s application was lodged (and therefore which immigration instructions applied) misinformed Mr Li to the point where he thought INZ’s continued requests for updating information were simply part of INZ’s erroneous stance regarding the assessment date being 19 July 2016, then arguably INZ has caused or perpetuated Mr Li’s misapprehension. On the other hand, if it is just a simple case (as the Chief Executive contends) of INZ requesting updating information and Mr Li refusing to provide it, then it follows that there has been no breach of natural justice. If INZ has caused or perpetuated Mr Li’s misapprehension, the next question is whether in doing so INZ has deprived Mr Li of a proper opportunity to be heard.
[33] The above questions raised by Mr Li are seriously arguable; the latter is a legal question which is directly relevant to establishing whether there has been a breach of natural justice, and therefore of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA). Such questions pass the threshold for the grant of leave to appeal and to judicially review. Whether rights guaranteed by NZBORA are breached or not is a question of general and public importance.14
[34] As a counter to the above arguments, the Chief Executive contends that because s 58 of the Act requires Mr Li to provide all relevant information, therefore he is responsible for his failure to provide updating information about the performance of his business, despite any misunderstanding INZ may have created about whether it
was entitled to request such information. The Chief Executive further contends that
11 Song v Minister of Immigration [2016] NZHC 1828, [2016] NZAR 1232 at [43]–[44].
12 Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008 at
[56].
13 Neither INZ nor the Tribunal addressed this issue in their respective decisions.
14 See discussion in RM v Immigration and Protection Tribunal [2016] HZHC 735.
any misunderstanding by Mr Li as to his obligations to provide such information would have been obviated by the fact INZ attached to several of its letters the applicable immigration instructions, including reference to the applicant’s obligation to provide updating information where there has been any material change in circumstances. Mr Honeywill also noted explicitly that INZ had to be “satisfied that the business is still operational” and that “it is a requirement that you up date us of any material change that may affect your application”.
[35] If s 58 operates in the way the Chief Executive contends, it would mean that Mr Li was responsible for providing the updating information regardless of whether INZ’s conduct had misinformed Mr Li by leading him to believe INZ was asking for information it had no right to request (because it related to a period of time beyond the proper date of assessment of his application).
[36] In a context where INZ initially stated the wrong date for the assessment and then failed to expressly correct its error in its communications with Mr Li (it only did this at the time Mr Li’s application was declined) it is arguable as to whether the general obligation which s 58 imposes on applicants can still apply. If it did, it would mean applicants are responsible for providing information, despite INZ leading them to believe such information falls outside the scope of what is relevant to their applications. Whether s 58 could have such broad application is a further legal question that is capable of serious argument.
[37] Mr Li’s continued refusal to provide updating information despite repeated requests from INZ may have been the result of his own obstinacy, perhaps spurred by a general mistrust of INZ. Conversely, his stance was arguably the result of INZ putting him on the wrong track in the first place and then failing to expressly acknowledge it had corrected its error. In such circumstances, Mr Li may understandably have read the request for updating information as no more than a covert attempt to assess his application in accordance with contemporary requirements rather than those in force on 3 December 2014. Accordingly, in the context of a leave application I am not persuaded by the Chief Executive’s counter-arguments.
[38] It follows that I find there is a seriously arguable breach of natural justice by
INZ in the way that it handled his application.
The Tribunal’s decision
[39] A breach of natural justice by INZ could in principle be cured by an appeal hearing before the Tribunal, which allows for a hearing de novo. Accordingly, the next question is whether the hearing before the Tribunal has cured any arguable breach of natural justice by INZ. There are also separate complaints by Mr Li of the Tribunal breaching natural justice.
Relevant facts
[40] By the time Mr Li was pursuing an appeal before the Tribunal he was legally represented. The written material Mr Li’s lawyer filed with the Tribunal sufficiently explained Mr Li’s stance and the reasons for it. This material also included an offer to provide the Tribunal with updating information should the Tribunal decide Mr Li was required to do this. In the written material Mr Li’s lawyer stated:15
The appellant clearly stated out that he is not refusing to provide information and/or documents to [INZ], he is merely wish for [INZ] to correct its factual and procedure mistakes first.
[41] Nevertheless, the Tribunal approached Mr Li’s appeal on the basis he asserted INZ had acted incorrectly and unfairly by asking for updated information about the business. The answer to which was that INZ had authority to make the request and had acted properly in the circumstances. The Tribunal says nothing about Mr Li’s submission that there was no refusal to provide this information, rather he believed he was not legally obliged to do so, but if wrong on that point he would provide the information. Indeed, despite recognising Mr Li was under a misunderstanding, the Tribunal characterises Mr Li’s stance as a refusal to provide this information, which is
contrary to Mr Li’s submission.16
15 The quoted passage below accurately sets out the form of the written statement by Mr Li’s lawyer.
16 Compare [37] of [2017] NZIPT 203772 with the written submissions filed by Mr Li’s counsel set out at [39] herein.
Has the tribunal’s decision cured any arguable breach of natural justice by INZ?
Submissions
[42] The Chief Executive argues that the opportunity to appeal to the Tribunal has cured any breach of natural justice by INZ. Because by the time the appeal was filed Mr Li was aware that:
(a) INZ had considered his application in terms of the guidelines in force in December 2014;
(b) INZ required updating information about the current position of
Mr Li’s business, which it would have then assessed under the guidelines at December 2014.
[43] Armed with this knowledge Mr Li would then have had sufficient notice of the need to provide updating information. Nonetheless, he chose not to provide such information to the Tribunal, deciding instead to request the opportunity to provide the information if the Tribunal required it. Regarding this second point the Chief Executive relies on s 228(2) of the Act, which expressly provides that the Tribunal is not obliged to seek any information, evidence or submissions further to those already provided. By this time Mr Li was legally represented. The Chief Executive submits that if Mr Li’s lawyer acted unwisely by not providing all relevant information to the Tribunal at the first opportunity Mr Li cannot now complain the Tribunal has denied him a fair opportunity to be heard.
[44] On the other hand, Mr Li submits that it was clear from his submission to the Tribunal that he misunderstood the legal requirement to provide updating information, and that this was the reason for his refusal to do so. Furthermore, it is obvious from the Tribunal’s decision that it had recognised the misunderstanding and its harmful
consequence.17
17 See [37] of the decision where the Tribunal comments on the “unfortunate” effect of Mr Li’s
“misunderstanding.”
[45] Mr Li also argues that the Tribunal compounded INZ’s breach of natural justice: first, by not identifying that it had occurred; and secondly by not taking steps to remedy it. All of which also meant the hearing before the Tribunal could not cure INZ’s breach of natural justice. Accordingly, he argues that the Tribunal should have made an interim ruling on the legal requirements of the relevant INZ instruction regarding the obligation to provide updating information. This would have provided him with the opportunity to inform the Tribunal on the current position of his business and allowed him to address the merits of his appeal. He argues that the consequence of the Tribunal failing to take this course of action was that INZ’s breach of natural justice was not cured.
Discussion
[46] The decision shows the Tribunal knew Mr Li had refused to provide updating information because of a misunderstanding. The Tribunal also knew (from Mr Li’s written submission) that Mr Li would have provided the updating information had the Tribunal requested it. The Tribunal never specifically addressed whether it would make this request of Mr Li.
[47] Arguably, the Tribunal has missed and, therefore, failed to address the very thrust of Mr Li’s submissions to it. In which case the Tribunal could not have viewed the matter afresh, but has instead followed the line of reasoning advocated by INZ: namely, that Mr Li was entirely responsible for the failure to provide updating information to INZ and to the Tribunal. This conclusion was arguably reached: (a) without the Tribunal considering the part INZ played in Mr Li adopting this stance; and (b) despite Mr Li informing the Tribunal of his reasons for not providing the updating information, as well as his preparedness to do so should the Tribunal find that this was his legal obligation. In such circumstances, arguably the Tribunal’s approach could not cure any breach of natural justice by INZ, which would mean the breach and its ill effects continued to affect Mr Li adversely.
[48] Regarding the Chief Executive’s argument that s 228 of the Act provides sufficient reason for the Tribunal to have made no further enquiries of Mr Li, these arguments are similar to those which he raised in relation to s 58 of the Act. Arguably,
the scope of s 228 may not go so far as to allow the Tribunal to decide peremptorily to proceed without at least addressing whether it should seek the further information from Mr Li. If that were so, s 228 provides no excuse for the Tribunal’s conduct.
Failure to have regard to a relevant consideration
Submissions
[49] Mr Li argues that the way in which INZ erroneously refused Mr Li’s application was an implied relevant consideration that the Tribunal failed to take into account. Mr Li contends the Tribunal knew of this error and the misunderstanding that arose from it, all of which helped to explain the stance Mr Li took before the Tribunal regarding the provision of updating information. He contends that the Tribunal should have taken those circumstances into account before deciding to dismiss his appeal without first giving him the opportunity to provide the updating information.
[50] The Chief Executive argues the Tribunal’s decision reveals it was fully aware of Mr Li’s misunderstanding and the reasons for it. Accordingly, there is no basis for saying the Tribunal failed to take those circumstances into account; rather, the outcome simply reflects the Tribunal’s view of the merits of the appeal.
Discussion
[51] The factors that led to Mr Li not providing updating information to either INZ or the Tribunal were known to the Tribunal. Those factors provided an explanation for why this otherwise necessary information was not provided to either decision- making body. In such circumstances, those factors are arguably relevant considerations that the Tribunal should have taken into account before determining the appeal.
[52] Whilst the Tribunal’s decision refers to the reasons why Mr Li did not provide updating information, the Tribunal arguably does not treat them as relevant considerations which it is under an obligation to take into account. Had it done so it
is difficult to see why the Tribunal did not extend to Mr Li a further opportunity to provide the updating information.
[53] Accordingly, I am satisfied that this ground of appeal and review is seriously arguable.
Findings without evidence
Submissions
[54] Mr Li contends the Tribunal committed a further breach of natural justice by assuming the worst regarding the current performance of his business and circumstances.
[55] Much earlier on when INZ first determined this aspect of Mr Li’s application INZ was satisfied Mr Li fulfilled the criteria of BH4.10.a.iv by creating sustained and ongoing full-time employment for one or more New Zealand citizens or residents. Because of his misunderstanding about the need to file updating information Mr Li provided no further information. The Tribunal concluded that as at 2016 it was not clear whether Mr Li’s business still employed staff or indeed whether the business still operated at all. Mr Li argues that by so concluding the Tribunal merely assumed his circumstances had irretrievably deteriorated, as there was no evidence to support those conclusions, and that such conduct is itself a breach of natural justice because it amounts to making a finding unsupported by evidence.18
[56] On the other hand, the Chief Executive argues that it was for Mr Li to establish the basis for his application. His failure to provide updating information meant the Tribunal was left with no evidence to show the business continued to qualify under the relevant criteria or that special circumstances existed. Absent such information, the Tribunal was entitled to conclude that Mr Li’s application no longer qualified. Further, s 228 of the Act authorises the Tribunal to proceed to determine applications
on the information placed before it and without making further enquiries.
18 See Re Erebus Royal Commission [1983] NZLR 662 (PC) at 671.
[57] The answer here raises questions about the discharge of evidential proof before the Tribunal and, therefore, whether given the absence of evidence it was open to the Tribunal to reach the conclusions it did on the present status of Mr Li’s business. Decision-makers cannot fill gaps in evidence with speculation. A decision-maker must base its decision on material which “as a matter of reason, has some probative value.”19
The general principle is that stated in Re Erebus Royal Commission:20
… the person making a finding in the exercise of … [an investigative jurisdiction] must base his decision upon evidence that has some probative value …
Whether the Tribunal has breached this aspect of natural justice is a seriously arguable legal question.
Was the Tribunal’s decision pre-determined?
Submissions
[58] Mr Li argues that the Tribunal pre-determined what his circumstance actually were when it concluded that Mr Li’s business had failed without first hearing from
Mr Li on that topic or observing the basic requirements of natural justice. In this regard Mr Li seeks to characterise the Tribunal’s failure to request further information from him as evidencing pre-determination on its part.
[59] The Chief Executive contends that with this argument Mr Li seeks to characterise what is no more than orthodox reasoning on the Tribunal’s part as pre- determination. The respondent contends there must be evidence to support a finding that the applicant’s business qualified which in turn required updated evidence. In addition, the respondent contends the ground of pre-determination is beyond the scope of the permission I granted when allowing an amendment of the grounds of review
and appeal.
19 See R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 (CA) at 488 cited in Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at 1065.
20 At 671.
[60] The arguments Mr Li makes are not relevant to a challenge based upon pre- determination, which requires evidence that a decision-maker has acted with a closed mind. Whilst I accept there are arguable errors, none of them establishes this ground of appeal or review.
Other errors alleged in the Tribunal’s reasoning
Submissions
[61] The Chief Executive contends that Mr Li has sought to raise further errors which go beyond those I have permitted him to argue as part of his amended grounds of appeal and judicial review. In addition to the ground of pre-determination the Chief Executive refers to arguments raised by Mr Li based on indirect discrimination and breach of s 19 of NZBORA. The Chief Executive contends that the benefit of the interim judgment should not provide Mr Li with the opportunity to recast his claim beyond the boundaries permitted by the interim judgment. For this reason the Chief Executive submits that any additional grounds should not be permitted to be advanced. Nonetheless, the Chief Executive has out of an abundance of caution sought to address those grounds.
[62] Mr Li now seeks to rely on s 19 of the NZBORA, which guarantees the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act. Mr Li raises concerns about a breach of this ground as well as a breach of s 27 of NZBORA in the context of arguing that his case raises matters of general or public importance or that for any other reason leave should be granted. Mr Li raises these grounds as part of an argument that the fact that he is not a native speaker of English, which was well known to both INZ and the Tribunal, placed an obligation upon both to ensure the assessment process employed by INZ was fully explained and completely transparent. He argues that he received less clarification than he was entitled to. He contends that he was entitled to different and better treatment in terms of an adequate explanation since English was not his first language, and that to treat him as a first language speaker of English has had a disparate impact on him. In essence, he contends there has been a failure to provide an adequate explanation of the assessment
process and a failure to ensure he had sufficient understanding of what was happening, which amounts to indirect discrimination and a breach of s 19 of NZBORA on the part of both INZ and the Tribunal.
Discussion
[63] The arguments Mr Li makes here seem to me to be no more than a bolster to his general argument that he did not have a fair opportunity to be heard either by INZ or the Tribunal. I do not consider he raises these matters as separate grounds for leave. Whether they are relevant to his breach of natural justice grounds is something for the Judge who hears the substantive proceedings to decide.
Do the seriously arguable legal questions otherwise satisfy the grounds for grant of leave
Submissions
[64] Mr Li contends it is a basic and fundamental principle of justice that a person should know the case that he or she is required to meet. He contends his application to INZ and his appeal to the Tribunal failed because he did not appreciate the premise upon which he was being required to provide updating information. He says that lack of understanding arose because of INZ’s actions and its failure to make clear the basis on which it was requesting further information from him. Furthermore, he contends that in spite of both INZ and the Tribunal having recognised the reasons for his misunderstanding, neither party chose to enlighten him so as to give him the opportunity to engage properly and fairly with the application process. Nor did the Tribunal take the issue into account when it made a decision in Mr Li’s appeal despite its express acknowledgment that “his misunderstanding … meant that he refused to provide the requested information to demonstrate this his business met instructions and to so meet the health requirements.”21 Accordingly, Mr Li submits the questions he raises, whilst being of general and public importance, also demonstrate that his
circumstances do present an exceptional case.
21 Re Li [2017] NZIPT 203772 at [37].
[65] The Chief Executive contends that the present case does not qualify as raising matters of general or public importance and the only basis upon which it could qualify would be under the “any other reason” ground. However, the Chief Executive then goes on to submit that Mr Li’s application cannot qualify under this ground either. The Chief Executive submits the errors Mr Li has identified are factually specific to his case, and so do not speak to ongoing INZ policy or the Tribunal’s decision-making process. Instead the grounds stem from an alleged mistake in dates in a letter from an INZ employee. The mistake is characterised by the Chief Executive as an oversight peculiar to Mr Li’s case. In fact, INZ ultimately proceeded to consider the application on the correct basis. Accordingly, it is said the factually specific alleged error is not a matter of general or public importance justifying leave as the error has no factual or legal importance extending beyond the particular case. In terms of the “any other reason” ground the respondent contends this in general requires the applicant to show an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, which is not the case here.22
[66] The Chief Executive acknowledges that the bar may be marginally lower in applications under s 249(6) of the Act as any access to the avenue of judicial review is influenced by rights in NZBORA. Even so, the Chief Executive argues the guaranteed right to judicial review is a factor that can only tip the balance in marginal cases.23 The Chief Executive contends this case is not marginal: There is no error that is seriously arguable. Accordingly, there is nothing about the case that could overcome the high bar necessary for the grant of leave. The Chief Executive argues that s 19 of the NZBORA is irrelevant and the only guaranteed right relevant to the application is s 27.
[67] The Chief Executive, in essence, has characterised Mr Li as someone who has chosen not to provide updating information to INZ, despite being asked for it twice.
The Chief Executive contends that responsibility for Mr Li’s confusion cannot be
22 Citing Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3
NZLR 721at [8].
23 See RM v Immigration and Protection Tribunal [2016] NZHC 735 at [51].
attributed to INZ, but rather to his own mistaken understanding that he was not required to provide updated information.
Discussion
[68] I have found there are seriously arguable breaches of natural justice. These engage s 27 of the NZBORA. Further, those breaches engage enquiry into the meaning of s 58 and s 228 of the Act. I have found there is a seriously arguable case of failure to take account of a relevant consideration, which in turn has had the effect of breaching Mr Li’s right to natural justice.
[69] I am satisfied the questions I have identified also raise questions of general and public importance. The Tribunal is a statutory body exercising powers in a context that requires high standards of fairness.24 It is a matter of general and public interest that in every case before it the Tribunal acts in a manner that complies with the rules of natural justice and rights guaranteed under NZBORA.25 Further, the circumstances in which a hearing before the Tribunal may cure a breach of natural justice by INZ raise legal issues beyond this case. The proper interpretation of the scope of ss58 and
228 also raises legal questions that extend beyond this case.
[70] In general, a failure to take account of a relevant consideration is a legal error that is specific to a particular decision and, therefore, not of general or public importance. However, here any such failure has arguably deprived Mr Li of his right to be heard, and for this reason any such failure adversely affects his right to natural justice, which for the reasons already stated raises a question of general or public importance.
[71] How the Tribunal undertakes evidential assessments, and the extent to which the principle in Re Erebus is applicable here impacts more broadly than in just the present case. Accordingly, this is also a seriously arguable legal question of general
and public importance.
24 See Noa v Minister of Immigration at [8].
25 See discussion in Allada v Immigration and Protection Tribunal New Zealand [2014] HZHC 953, [2014] NZAR 880; RM v Immigration and Protection Tribunal [2016] NZHC 735.
[72] It follows that I am satisfied the above legal questions satisfy the requirement for leave to be granted.
[73] I have found there are seriously arguable legal questions that satisfy the test of being of general or public importance. Accordingly, it is unnecessary to consider whether there are exceptional circumstances warranting leave being granted. However, I consider that in the immigration context, in principle, if relevant decision makers misinform an applicant and then leave him in this state so that he fails to present his case to them properly, such loss of a fair opportunity to be heard is an exceptional case that warrants leave being granted.
Fresh evidence
[74] The Chief Executive contends that Mr Li relies on fresh evidence that was not before the Tribunal, and therefore it should not be admitted on the leave application. I take this to be a reference to Mr Li’s evidence regarding the information that he could have placed before the Tribunal about his business and his explanation for why the business had declined since he filed his application in December 2014. In this regard, Mr Li has offered a reasonable explanation for why the business had ceased to employ a New Zealand citizen or resident. If the explanation were accepted it could provide a basis for showing the business might still meet the relevant criteria.
[75] Whether fresh evidence is accepted for the appeal is a matter for the Judge hearing the substantive hearing. The test for admission of fresh evidence on appeal is well settled.
[76] Regarding the judicial review proceeding, this is a first instance proceeding. Mr Li is entitled to file evidence relevant to the judicial review proceeding. The evidence he has filed would be relevant to the loss of opportunity to be heard, as it shows there was relevant evidence he could have presented to the Tribunal and to the exercise of the discretion to grant relief. The evidence goes to show the same outcome following any reconsideration is not inevitable and therefore that relief is not futile. The relevant criteria allow for someone who does not presently employ New Zealand citizens or residents to provide information from a business consultant to show that within a specified time the business will do so. Such evidence coupled with Mr Li’s
explanation for why he ceased employing his New Zealand employees may well provide any Tribunal that reconsiders his appeal with a sufficient basis for finding his business is capable of meeting the relevant criteria.
[77] Accordingly, for the purpose of deciding the leave application I see no proper basis for refusing to accept the evidence Mr Li has placed before me.
Leave to bring judicial review
[78] Before granting leave to bring judicial review proceedings I must have regard to s 249(6) of the Act. To make proper sense of the alleged breaches of natural justice on which Mr Li relies evidence is required to establish the factual foundation for those breaches. The Court that hears the substantial proceedings will need to make factual determinations before dealing with the legal questions. Such matters are more suited to judicial review, which is a first instance proceeding that examines the process followed by the defendant decision-maker. Whilst such questions could be determined in an appeal the Court would necessarily have to permit fresh evidence (potentially from both sides) to ensure it was fully aware of all relevant facts.
[79] Here the Chief Executive has already indicated he would oppose the filing of fresh evidence in the appeal. If the judicial review proceeds there will be no need for determinations on any application to adduce fresh evidence.
[80] Breaches of natural justice are generally dealt with in the context of judicial review proceedings. Such proceedings allow for the exercise of discretion to grant relief whereas an appeal hearing on questions of law makes no allowance for the exercise of this discretion.
[81] Accordingly, I am satisfied the issues raised by Mr Li cannot be dealt with adequately in an appeal against the Tribunal’s decision and therefore the requirements of s 249(6)(a) are met.
[82] For the reasons given in relation to the appeal I am satisfied the issues raised by the judicial review qualify in terms of s 249(6)(b) for the grant of leave.
Conclusion
[83] I am satisfied that leave be granted to Mr Li to bring his appeal and judicial review of the Tribunal’s decision.
[84] The parties have leave to file memoranda on costs.
Solicitors/Counsel: Chen Palmer, Auckland Meredith Connell, Auckland
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