Li v Immigration and Protection Tribunal
[2017] NZHC 2354
•27 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2017-404-754 [2017] NZHC 2354
UNDER the Immigration Act 2009 BETWEEN
TINGJIA LI Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL Respondent
CIV2017-404-755
BETWEEN TINGJIA LI Appellant
ANDTHE CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 3 August 2017 Counsel:
H Pryde for Mr Li
S Earl for Chief ExecutiveJudgment:
27 September 2017
INTERIM JUDGMENT OF DUFFY J
This judgment was delivered by me on 27 September 2017 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel: Chen Palmer, Auckland Meredith Connell, Auckland
LI v THE IMMIGRATION AND PROTECTION TRIBUNAL & MBIE [2017] NZHC 2354 [27 September
2017]
[1] Tingjia Li came from China to New Zealand on 26 September 2012, entering on a work to residence (long term business) visa (LTBV). His wife and son joined him in New Zealand the following year, entering on work and student visas respectively.
[2] Holders of a LTBV can after a qualifying period apply for a residence visa. Mr Li applied for a residence visa under the entrepreneur category. His application was finally declined on 18 October 2016. Mr Li appealed unsuccessfully to the Immigration and Protection Tribunal (the Tribunal). He now seeks leave to appeal against and to judicially review the Tribunal’s decision. His application for leave is opposed.
Facts
[3] This account of the facts is for the purpose of the leave application only.
[4] Mr Li’s application for a residence visa has a protracted history. He first applied for a residence visa under the entrepreneur category on 3 December 2014. The application was wrongly declined. Mr Li learned this as a result of a successful appeal to the Tribunal, which directed Immigration New Zealand (INZ) to reassess
the residence visa application.1
[5] Then INZ made a further error. On 23 August 2016 Joshua Honeywill, a business immigration specialist employed by INZ, wrote to Mr Li wrongly advising him that INZ would be assessing his residence visa application as at 19 July 2016, which is when Mr Honeywill mistakenly thought Mr Li had “lodged” the residence application. This approach was contrary to directions given to INZ by the Tribunal. Further, the only residence application which Mr Li lodged was on 3 December
2014. Because the 2014 application was wrongly declined by INZ, it was required to reassess the application in accordance with instructions operative on 3 December
2014.
[6] Ultimately, INZ realised its error, but by then Mr Li had embarked on a course of action that was instrumental in his application being declined. In short, the exchange of correspondence between Mr Honeywill and Mr Li in the lead up to INZ’s dismissal of the application shows that Mr Honeywill never expressly acknowledged that INZ had realised its error. At the same time Mr Honeywill made requests for current information about the health of Mr Li’s business and whether he still employed New Zealand residents or not. The requests included listing for Mr Li the type of information INZ required, all of which clearly post-dated 3 December
2014. This seemingly caused Mr Li to infer that INZ was maintaining its earlier erroneous stance that the application would be assessed contemporarily. Accordingly, he refused to provide any updating information and maintained his stance that INZ was confined to looking at matters as at 3 December 2014.
[7] In the last communication Mr Li sent before INZ released its decision, dated
30 September 2016, Mr Li provided detailed reasoning as to why he considered INZ was obliged to assess the residence application as at December 2014. Then tellingly Mr Li stated he was not unwilling to provide further information, it was simply he did not regard it as a legal requirement for him to do so:
I wish to make it clear to INZ that it is not that I refuse to provide information/documents 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 the said information.
As a result, INZ has again failed to follow correct process, and this time, also IPT directions. It is unacceptable that such failure continues after IPT has provided clear directions.
Mr Li concluded by repeating his concern that INZ was refusing to reassess his residence application under the correct procedure.
[8] INZ’s next step was to issue its decision dismissing the application, dated
18 October 2016. For the first time it expressly acknowledged it was required to assess Mr Li’s application using instructions operative as at 3 December 2014, but then it went on to say it was entitled to request updating information so that it could be sure Mr Li’s business still qualified as a basis for him being granted residence. Mr Honeywill stated that Mr Li’s response gave no substantive evidence
demonstrating he was currently providing sustained and ongoing full time employment. The lack of substantive evidence meant that INZ was not satisfied that the business provided ongoing and sustainable employment. At this point Mr Li’s next option was to appeal to the Tribunal, which is what he did.
[9] Mr Li engaged legal advice and an appeal letter/application was sent on his behalf to the Tribunal on 6 November 2016. At this time Mr Li still held a current visa to be in New Zealand. The appeal requested priority and explained that Mr Li’s and his family’s visas were due to expire on 17 January 2017. The appeal set out in detail the stance taken by INZ as revealed in Mr Honeywill’s letters, as well as Mr Li’s stance. The writer then stated:
The appellant clearly stated out (sic) that he is not refusing to provide information and/or document to Immigration New Zealand, he is merely wish for (sic) Immigration New Zealand to correct its factual and procedure mistakes first.
[10] The Tribunal released its decision on 21 March 2017, dismissing Mr Li’s appeal.2 By then the visas of Mr Li and his family had expired. Accordingly they were then in New Zealand unlawfully.
[11] At the time the Tribunal made its decision, neither it nor INZ were aware that Mr Li’s business had ceased to employ persons who were New Zealand citizens or residents following INZ’s first and unlawful refusal of his residence application. INZ’s earlier wrongful refusal of his application led to Mr Li informing his employees of what had eventuated and its potential impact on their continued employment. This resulted in the employees terminating their employment with Mr Li’s business.
[12] Although Mr Li’s appeal against the first refusal was successful, he was then faced with the prospect of his application being re-assessed. His confidence in INZ was shaken. Accordingly he was reluctant to hire new employees. Thus by the time INZ came to reassess his residence application, the business did not at that point meet INZ’s instructions for a qualifying business insofar as it did not currently employ a New Zealand citizen or resident. However, the relevant instruction allows
for a business to be assessed taking into account how it might perform over the next
12 months provided that assessment is made by a business immigration advisor. Accordingly, the fact the business was not then employing New Zealand citizens or residents was not necessarily fatal to Mr Li’s application. A full explanation of why this had occurred, coupled with evidence from a business immigration advisor to the effect Mr Li’s business was capable of such expansion, may have been sufficient to satisfy INZ.
Tribunal’s decision
[13] The parts of the decision relevant to these proceedings are those concerning whether Mr Li’s business qualified as a business benefiting New Zealand and the Tribunal’s decision on whether there were special circumstances that warranted consideration by the Minister of Immigration as an exception to the residence instructions.
[14] The Tribunal found it was reasonable for INZ to require Mr Li to provide updating information about his business to support his residence application. The Tribunal found that when INZ first considered the application, Mr Li’s business appeared to be running profitably and was employing qualifying employees. However, the Tribunal then noted that Mr Li had failed to provide updating information on the performance of his business. This led the Tribunal to conclude it was unfortunate that Mr Li’s misunderstanding on that point meant he refused to provide requested information to demonstrate his business met INZ’s requirements. Accordingly the Tribunal concluded that INZ’s decision to refuse residence was correct. Mr Li had not provided any updated information to demonstrate his business added significant benefit to New Zealand by the creation of sustained and ongoing full time employment for one or more New Zealand citizens or residents. The Tribunal then went on to consider whether there were special circumstances that warranted consideration by the Minister of Immigration as an exception to the residence instructions.
[15] Of concern for the purposes of these proceedings are the findings the
Tribunal made in relation to Mr Li’s business. The Tribunal noted that Mr Li had
established his business in October 2012 when he purchased a business that undertook testing and safety certification of electrical appliances for other companies. The business was part of an established franchise in New Zealand. Information on Mr Li’s file indicated the general manager of the franchise business considered Mr Li to be a valued member of the franchisee team. In a letter dated
10 September 2014 the general manager had said that Mr Li’s hard work and diligence had led to him establishing a very successful business which provided a high level of service and technical support to its customers. There were letters from other franchisees of the business which also attested to its sound performance. Those letters however were dated variously in November 2015. The Tribunal noted that the information on Mr Li’s file was dated. They indicated his business employed at least two employees in the past, one of whom was a technical assistant employed from May 2013 to June 2014 and the other was employed as an administration clerk from June 2014. It was unclear to the Tribunal whether any New Zealand citizen/resident employees remained employed by the business. The financial statements of the business for the year ending 31 March 2014 indicated a total revenue of $173,563, paid salaries of $28,425 and sub-contractor payments of
$22,894, leaving a net profit of $52,071. The following year ended 31 March 2015 the business had a total revenue of $262,047, paid salaries of $73,469; sub-contractor payments of $94,476 and a net profit of $27,865.
[16] The Tribunal observed that while it appeared Mr Li had worked hard to establish his business and that as of 31 March 2015 the business had upward trending revenue, the Tribunal found it was not “clear that the business is still operating, given no updated information has been presented and that the appellant is unlawfully present in New Zealand.”3 The Tribunal concluded that Mr Li had not provided updated information about his business and there was nothing to indicate that the contribution it made to the New Zealand economy was out of the ordinary. Accordingly the Tribunal found Mr Li did not qualify for residence.
Grounds for granting leave
[17] The grounds relied on in both the application for leave to appeal and judicially review are:
(a) that the Tribunal erred in law in that it did not interpret and apply correctly the applicable immigration instruction as it relates to sustained and ongoing employment;
(b)the Tribunal failed to take into account a mandatory relevant consideration, namely the significant benefit that Mr Li’s business had already provided to New Zealand by the time he first applied for residency in December 2014;
(c) the Tribunal failed to take into account a relevant consideration, namely the impact that INZ’s earlier decision of 30 October 2015 (which the Tribunal had found to be unlawful in Mr Li’s first appeal to it) had on Mr Li’s ability to meet the applicable immigration instruction; and
(d)the Tribunal erred in law in that it did not interpret and apply correctly the test for “special circumstances” under s 187(1) of the Immigration Act 2009 due to the fact it failed to have regard to the impact the earlier unlawful decision of INZ had on Mr Li’s ability to meet the relevant INZ instruction.
Discussion
[18] The requirements for the granting of leave to appeal or judicially review are well established. An applicant must identify a legal error of general or public importance or show there are special circumstances warranting the grant of leave.4
[19] One of the problems with the grounds Mr Li relies upon is that at no time did
he bring to the attention of either INZ or the Tribunal the adverse impact of INZ’s
earlier wrongful refusal of his residence application. Insofar as he now asserts that this was a factor influencing his business no longer qualifying, it was one that the relevant decision-makers were not aware of at the material time. Accordingly, there can be no complaint that they failed to address the point let alone that it was a mandatory relevant consideration of the type which failure to address renders the decision fatally flawed. It seems incontestable that INZ was entitled to request updating information despite the re-assessment being required to be made in accordance with instructions operative as at 3 December 2014.
[20] I am also satisfied the Tribunal did not err in law in terms of interpreting and applying the applicable immigration instructions and the test for special circumstances.
[21] Accordingly, I find that the grounds for leave to appeal and/or judicial review on which Mr Li relies do not qualify for leave to bring those proceedings.
[22] However, during exchanges with counsel a new possible ground of appeal and/or judicial review emerged. This is based on there being a breach of natural justice on the part of INZ and the Tribunal. Mr Li’s counsel said she would adopt this as an additional ground for leave.
[23] In response the respondent contended that insofar as INZ may have breached natural justice any such breach was later cured by the hearing before the Tribunal because then Mr Li had a full opportunity to present his case for residence.
[24] The respondent acknowledged that the first time Mr Li expressly heard from
INZ that his application was to be re-assessed in accordance with instructions as at
3 December 2014 was when it sent Mr Li notice dismissing his residence application. Accordingly, it is arguable that when Mr Li was earlier faced with INZ’s requests for updating information about his business, he mistakenly inferred that INZ was continuing to adhere to its earlier incorrect view that the application would be re-assessed in accordance with instructions applicable at the assessment date, which is arguably why he refused to co-operate. It is also arguable that INZ’s failure to make clear how it proposed to re-assess the application and why it required the
updating information denied Mr Li a proper opportunity to be heard, which is a breach of natural justice.
[25] Relevant here is the fact that Mr Li always stated in his communications with INZ that he was not refusing to provide updating information; he was simply asserting he was not required to do so. Had he received a clear explanation for why the updated information was needed (which involved an assurance the application would be re-assessed as per the applicable instructions for 3 December 2014), he could then have made a properly informed decision on how he would respond to INZ’s request. By the time INZ had clearly stated the position correctly, it had already dismissed the application.
[26] The respondent contends that even if the above were made out, any breach of natural justice through INZ’s failure to provide Mr Li with a proper opportunity to be heard was cured by the appeal to the Tribunal.
[27] When Mr Li appealed to the Tribunal he maintained the application was to be assessed on the basis of the information provided on 3 December 2014. However, he also made it clear that this was his view of the legal requirements rather than a point blank refusal to provide updating information. By then he had proper notice INZ wanted the updating information for the purpose of a re-assessment to be made in accordance with instructions operative as at 3 December 2014. Although Mr Li still maintained, albeit incorrectly, that he was not obliged to provide updating information, by then he knew the purpose of INZ’s request and so he also knew INZ would be assessing the application in accordance with the 2014 instructions. Accordingly, Mr Li could have added an alternative argument to his appeal submission, which provided an explanation for the current position of his business and how it came to be in those circumstances. Had he done so, the points he now makes regarding the Tribunal’s failure to consider the relevant considerations he identifies may have provided more support for the grant of leave.
[28] On the other hand it was arguably clear from Mr Li’s submission to the Tribunal that he had misunderstood the legal requirements and that this was the reason why he had refused to provide updating information. The submission
specifically stated he was not refusing to supply the requested information, rather he simply believed he was not required to do so. This is how the Tribunal appears to have understood his stance.
[29] Faced with Mr Li’s stance the Tribunal arguably could have ruled on the legal requirements of the relevant INZ instruction regarding the obligation to provide updating information. Had the Tribunal made that ruling in an interim decision it could then have offered Mr Li the opportunity to inform the Tribunal on the current position of his business. By doing so the Tribunal would have given Mr Li an opportunity to address the merits of his appeal, instead of leaving him with a narrow appeal that he had mistakenly restricted to an incorrect legal argument on the scope of the relevant INZ instructions. By failing to give Mr Li this opportunity, the Tribunal may not have cured any breach of natural justice by INZ; instead, the Tribunal may arguably have compounded the breach.
[30] When it came to consider the question of special circumstances, the Tribunal assumed the worst regarding the current performance of Mr Li’s business. It stated that it was not clear whether Mr Li’s business still employed staff or indeed whether the business still operated at all. It is true the business no longer met the requirement to employ a New Zealand citizen or resident. But this was not known by either INZ or the Tribunal. Thus there was no evidence to support the conclusions reached by
the Tribunal, which can of itself be a breach of natural justice.5 The Tribunal also
assumed that because, by the time it released its decision, Mr Li and his family no longer held valid visas to be in New Zealand, his circumstances had irretrievably deteriorated. Again there was no evidence to support this conclusion.
[31] Mr Li had shown earlier that he was capable of running a successful business that could employ a New Zealand citizen or resident. The first time the business was assessed, INZ found that the business qualified, but at that time INZ erred in relation to its assessment of Mr Li’s character. Had Mr Li been given a proper opportunity to be heard he may have been able to present the Tribunal with information that showed the business could once again operate to meet INZ’s instruction. In that regard the
instruction allows for consideration of businesses that do not currently meet
5 See Re Erebus Royal Commission [1983] NZLR 662 (PC) at 671.
requirements but which can be shown to be capable of doing so within twelve months of the application. This requires an immigration business consultant to provide an opinion on the likely success of the business.
[32] If the reasons for the employees terminating their employment earlier on were substantiated and it looked as if the business could be made to operate successfully again so that it provided work opportunities for New Zealand citizens and residents, Mr Li may have been able to persuade the Tribunal that either the business would meet the INZ instruction, or that there were special circumstances (as a result of INZ’s earlier error) that warranted a recommendation to the Minister. However, the approach followed by the Tribunal meant that Mr Li never had those opportunities.
[33] I consider, therefore, that in principle the exchange between counsel at the hearing revealed a fresh possible ground for leave to appeal and/or judicially review that may well qualify for the grant of leave.
[34] In this regard I note Palmer J’s observations in RM v Immigration and
Protection Tribunal that where a ground of judicial review is potentially arguable, s
27(2) of the New Zealand Bill of Rights Act 1990 (which preserves the right to seek judicial review) militates in favour of granting leave to bring judicial review proceedings.6 Otherwise the leave requirement could have the effect of restricting the availability of judicial review without justification. That point is echoed in other High Court decisions discussing the “any other reason” ground in s 249(6).7 In this case I consider the breaches of natural justice constitute potentially arguable grounds of judicial review. Further, I consider that if corrected, these breaches could
potentially have affected the Tribunal’s outcome.8
6 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [50]; reiterated in AI v
Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [35].
7 See also Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32] per Asher J; Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]–[19] per Heath J; and BU v Immigration and Protection Tribunal [2016] NZHC 1499 at [36] per Whata J.
8 Compare BU v Immigration and Protection Tribunal, above n 9, at [38], where Whata J concluded that the asserted procedural error would not, if corrected, materially affect the outcome and therefore declined to grant leave to appeal or judicially review.
[35] Moreover, I see the potential breaches of natural justice as raising concerns of general or public importance. Section 27 of the New Zealand Bill of Rights Act guarantees the right to natural justice. INZ and the Tribunal are subject to the New Zealand Bill of Rights Act. It is of general and public importance that INZ and the Tribunal act in accordance with the guarantee given by s 27.
[36] I also consider there may be a further ground of appeal/judicial review that arises from the potential breaches of natural justice. The Tribunal was fully informed about the manner in which INZ had reached its decision to refuse Mr Li’s application. This included INZ’s failure to inform Mr Li beforehand about the basis on which his application would be assessed. This omission on the part of INZ was arguably an implied relevant consideration that the Tribunal should have taken into account when it made its decision on his appeal.
[37] However, before proceeding to consider the matter further I consider Mr Li has to confirm that he seeks to rely on breach of natural justice and failure to take account of a relevant consideration as a ground for leave to appeal and or judicially review; and if he does he must outline the form of the ground/s in the proposed pleadings. Further, I consider the respondent is then entitled to make further submissions directed towards this ground for leave.
Result
[38] Mr Li has 15 working days from the delivery of this decision to file amended pleadings including the additional ground for leave to appeal or judicially review and submissions in support of that ground.
[39] If Mr Li files an amended pleading and submissions, the respondent has 15 working days from the receipt of Mr Li’s amended pleadings and submissions to file submissions in response.
[40] If Mr Li takes no further steps in this proceeding within the timetable directions, the application for leave will be dismissed on the expiry of the stated time
for him to act.9
9 See [18]–[21] herein where I find the grounds which Mr Li put forward do not qualify for the granting of leave.
4
0