Liu v Minister of Business, Innovation & Employment

[2014] NZHC 3074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2158 [2014] NZHC 3074

UNDER	s 245 Immigration Act 2009
IN THE MATTER	of an application for leave to appeal the decision of the Immigration & Protection Tribunal
BETWEEN	YINGHENG LIU Applicant
AND	MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT Respondent

Hearing:	3 December 2014
Counsel:	SL Laurent for applicant AR Longdill and OM Klaassen for respondent
Judgment:	4 December 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 4 December 2014 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Laurent Law, Auckland

Meredith Connell, Auckland

Liu v Ministry of Business, Innovation & Employment [2014] NZHC 3074 [4 December 2014]

Introduction

[1]      The applicant applies for leave to appeal a decision declining the applicant New  Zealand  residence.     The  proposed  appeal  raises  issues  concerning  the distinction between business investment and working capital and the requirement to create employment.   It is opposed by the first respondent.   The applicant has discontinued an application for leave to bring judicial review arising out of the same facts.

Background

[2]      On 18 June 2013, the applicant’s application for a long-term business visa, a work visa under the business category of New Zealand Immigration instructions under the provisions which related to the Business (Entrepreneur Plus) Category, was declined.  Immigration New Zealand was not satisfied that the applicant had invested at least $500,000 into TDA Immigration Mt Albert Ltd and was not satisfied that the applicant had created a minimum of three full time employment positions for New Zealand citizens or residents in TDA Immigration Mt Albert Ltd.

[3]      The applicant appealed to the Immigration and Protection Tribunal.

Immigration and Protection Tribunal decision

[4]      The Tribunal’s decision was given on 31 July 2014.  It held that Immigration

New Zealand’s decision to decline the application was correct.

[5]      The Tribunal’s decision records that when the applicant made his application he advised Immigration New Zealand that instead of establishing a new company, he had in fact acquired a 30 per cent shareholding in TDA Immigration Mt Albert Ltd.

[6]      The Tribunal found that the company had three full time employees at the time he transferred $500,000 into the company’s bank account on 24 August 2012. It also found that the company had transferred $350,000 into a term deposit on

29 August 2012.  It noted that Immigration New Zealand had not been satisfied that the applicant had made an investment of $500,000 in the company.  It also noted that the company had four full time employees at this time.  However, when the applicant

acquired his shareholding the company already had three employees with the result that the applicant had not been the person who had created three employment positions.

[7]      The Tribunal noted that the application for leave to appeal was made on

22 November  2012  and  that  it  must  therefore  apply  the  Government  residence instructions  in  existence  at  that  time.    The  relevant  instruction  is  BL6,  which provides as follows:

BL6     Successful establishment of a business in New Zealand

a.A  principal  applicant  will  be  considered  to  have  successfully established a business in New Zealand if:

i.        they have established or purchased, or made a substantial investment in a business operating n New Zealand; and

ii.        they  have  been  self-employed  in  New  Zealand  in  that business since meeting (i); and

iii.       they have invested at least NZ$0.5 million into the business as set out at (i); and

iv.       they have created a minimum of three full-time positions for

New Zealand citizens or residents in that business; and

v.        the  business  complies  with  employment  and  immigration law.

[8]      The Tribunal held that:

(a)      the applicant had not established that he had in fact invested $500,000 into this business;

(b)Immigration New Zealand correctly found that holding funds in a term deposit did not constitute a business investment;

(c)      Immigration New Zealand correctly identified that no evidence had been produced to demonstrate that the balance remaining had been invested in the business in accordance with his instructions; and

(d)He   had   not   established   that   he   had   created   three   additional employment positions because of the four employees currently employed by the company, two had been employed since June 2011.

The application for leave to appeal

[9]      Section 245 of the Immigration Act 2009 provides:

245     Appeal to High Court on point of law by leave

(1)       Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied   with   any   determination   of   the   Tribunal   in   the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

(2)      Every appeal under this section must be brought—

(a)       not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

(b)       within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(3)       In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

[10]     In SK v Immigration and Protection Tribunal, I summarised the applicable approach to determining an application for leave to appeal as follows:1

[6]       …The requirement that issues justifying a judicial review or an appeal are those which, by reason of their general or public importance or for any other reasons, ought to be submitted to the High Court by definition narrow the grounds that justify the granting of leave. I adopt the statement of principle in LMN v Immigration and Protection Tribunal New Zealand:

The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public  importance,  or  which  for  any  other  reason  should  be submitted to this Court for its decision. Thus, factual errors or legal

1      SK v Immigration and Protection Tribunal [2014] NZHC 2693.

errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination,  therefore,  is  whether  the  applicant  has  identified legal  errors  on  the  part  of  the Tribunal  that  extend  beyond  the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing ‘any other reason’   for   his   appeal   to   be   submitted   to   this   Court   for determination.

[7]       While Duffy J was discussing s 245(3) in relation to appeals, the language used is the same as that in s 249(1C)(b) and her Honour's comments are equally applicable to that subsection, once the gateway of s 249(1C)(a) is passed.

[8]       In Minister of Immigration v Jooste the Court of Appeal noted that the test is similar to that applying to second appeals to the Court of Appeal under s 67  of theJudicature Act 1908. The Court referred to the Court's earlier decision   in Waller   v   Hider. There,   the   Court,   considering   s 67    of the Judicature Act 1908, observed:

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder.

[9]       The remaining category “any other reason” has likewise been the subject of consideration.   I   adopt   the   comment   of   Kós   J   in Taafi   v   Minister of Immigration where he said:

… it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.

[Citations omitted]

Discussion

[11]     I reach the conclusion that there is no seriously arguable question of law involved in this appeal and, in particular, that the appeal simply cannot succeed because of the factual findings that have been made.  That arises from the fact there

is a finding recorded in the Tribunal’s decision that two of the employees of the company had been employed since June 2011.  There is nothing that connects the employment of those employees and the position they held in the company with the applicant.  There is, therefore, no foundation for compliance with BL6(a)(iv).  This conclusion is sufficient to dispose of the application.

[12]     I do not intend to summarise the submissions of counsel because the answer, based on the factual findings is that no appeal could succeed in this case.

[13]     Even if the applicant’s arguments as to whether there had been an investment in compliance with BL6(a)(iii) were correct, they could not overcome the difficulty that the applicant’s application could not pass the threshold required for compliance with BL6(a)(iv).

[14]     The  application  for  leave  to  appeal  is  accordingly  dismissed.    Counsel confirmed that there were no issues as to costs.

JA Faire J