Shi v Chief Executive of the Ministry of Business, Innovation and Employment
[2014] NZHC 1217
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-4623 [2014] NZHC 1217
BETWEEN LIANGYING SHI
First applicant
ZHAONUAN LI Second Applicant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
Hearing: 8 May 2014 Appearances:
C Curtis for applicants
W Fotherby for respondentJudgment:
30 May 2014
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 30 May 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Marshall Bird and Curtis (Auckland) for Applicants
Meredith Connell (Auckland) for Respondent
SHI & Anor v THE CHIEF EXECUTIVE OF THE MBIE [2014] NZHC 1217 [30 May 2014]
Introduction
[1] Liangying Shi and her husband, Zhaonuan Li (the applicants), make application for judicial review of a decision by a business immigration specialist employed by Immigration New Zealand, to decline Ms Shi’s application for a Long Term Business Visa (LTBV). She says that the business immigration specialist was wrong and she did meet the criteria for the issue of a LTBV. Judicial review is however a more limited remedy than an appeal on the merits (which is not available in the present case). Judicial review instead focuses on the process for the making of
decisions.1
Immigration history
[2] The following background is largely taken from the affidavit of Cristina Fruscalzo, sworn on 15 April 2014 in opposition to the application for judicial review. No issue is taken with her summary of Ms Shi’s immigration history.
[3] The applicants are wife and husband. They were both born in China and are now aged 44 years. While in China they had one son, who is now 19 years old.
[4] On 30 January 2002, while in China, the applicants applied for residence in New Zealand. Mr Li was the principal applicant. Immigration New Zealand approved the application in principle on 11 July 2002, subject to evidence of certain requirements being met. One of these requirements was evidence that investment funds of $1 million were transferred through the trading bank system and placed in an investment capable of providing a commercial return.
[5] The applicants arrived in New Zealand together with their son on 23 October
2002 and, in accordance with the approval in principle, were both granted work permits (now known as visas). However, on 9 October 2003, Immigration New Zealand declined the applicants’ application for residence as it was not satisfied that they had provided acceptable evidence of having transferred and invested the
required investment funds in accordance with policy requirements. The applicants
1 Graham Taylor Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington,
2014) at 15.03.
appealed against the decision to decline their application, but in a decision dated 17
February 2004 the Residence Review Board dismissed the applicants’ appeal.
[6] The applicants held visitor permits while awaiting the decision of the Residence Review Board. These expired on 11 April 2004 and thereafter the applicants remained in New Zealand unlawfully and were liable for removal at any time. The applicants had a second son born in New Zealand on 29 September 2004.
[7] After living unlawfully in New Zealand for almost five years, Immigration New Zealand located the applicants in March 2009. After conducting a humanitarian interview with them, Immigration New Zealand advised them that the information they had provided did not make them eligible for a further permit to remain in the country and told them to make arrangements to depart New Zealand. The applicants then applied for judicial review of the decision by Immigration New Zealand to decline them any further permits.
[8] The judicial review proceedings were settled in May 2009 when Immigration New Zealand agreed to conduct a fresh humanitarian interview. However, that did not take place because the applicants objected to the case officer assigned to conduct the interview.
[9] Instead, on 5 October 2009, Immigration New Zealand invited the applicants to apply for work permits under s 35A of the Immigration Act 1987 (the Act). The applicants accordingly applied for special permits and Immigration New Zealand then granted them six month open work permits on 26 April 2010 to afford them the opportunity to apply for a LTBV.
[10] On 30 September 2010 the applicants applied for a LTBV. Mr Li was again the principal applicant. Ms Shi was included on the application as a spouse. The applicants’ elder son, but not their younger son, was included in the application as a dependent child. Immigration New Zealand granted further visitor visas to the applicants to allow them to remain in New Zealand lawfully while it considered their application for a LTBV.
[11] On 7 April 2011, Immigration New Zealand declined the application for an LTBV, primarily because it did not meet the relevant policy requirements. Mr Li’s only relevant business experience had been obtained while working unlawfully as a painter in New Zealand. Also he had not established that the business would benefit New Zealand, in particular, through the creation of employment. The applicants became liable to be deported as a result of this decision.
[12] The applicants then appealed against their liability for deportation, this time to the Immigration and Protection Tribunal (the Tribunal), on humanitarian grounds. On 3 August 2012, the Tribunal dismissed the applicants’ appeal, concluding that even if the issues raised by the applicants were taken cumulatively, there were no exceptional humanitarian circumstances that would make it unjust to deport them. However, given that the applicants were running a business and owned a property, the Tribunal directed that they be granted open work visas for six months to enable them to get their affairs in order.
[13] On 21 February 2013, the day before the applicants’ work visas expired, Immigration New Zealand received a second application for a LTBV from the applicants. This time, Ms Shi was the principal applicant and Mr Li was included as a spouse. Having received a second application for a LTBV, interim visas were again granted to the applicants pending determination of the application. These visas expired on 23 August 2013.
[14] Immigration New Zealand sent a letter dated 12 August 2013 to the applicants, identifying some potentially prejudicial information in their application and inviting them to respond to this information. The applicants’ immigration adviser, Mr Tuariki Delamere, responded to this letter on 30 August 2013, and provided further information relating to the concerns that had been raised by Immigration New Zealand.
[15] On 25 September 2013, Immigration New Zealand declined their second application for a LTBV. In particular, the business immigration specialist noted:
(a) that he was unable to conclude that Ms Shi, as principal applicant, had business experience that was relevant to her business proposal; and
(b)he was not satisfied that she was genuinely interested in establishing the business in New Zealand, and that she would abide by the conditions of a LTBV.
[16] On 24 October 2013, the applicants challenged this second decision to decline a LTBV by filing the present application for judicial review in the High Court at Auckland.
Long term business visa
[17] The LTBV category was abolished with effect from 20 December 2013. However, at the time it catered for business people who were interested in establishing a business in New Zealand without living permanently in New Zealand, or with the intention of better enabling themselves to meet the relevant criteria for residence under the entrepreneurial category. They were a category of temporary entry class visas allowing self-employment in New Zealand. Successful applicants could be granted work visas for periods of up to three years. Self-employment was defined as lawful, active involvement in the management and operating of a business in New Zealand which the principal applicant had established or purchased, or in which the principal applicant had made a substantial investment.
[18] A principal applicant for a LTBV must have completed a business plan that met policy requirements for his or her business proposal and have business experience relevant to the business proposal. There were a number of other requirements including a minimum standard of English.
[19] A business plan was defined as a plan to establish a specific business in New Zealand which contained information as set out in a business plan form and was supported by appropriate documentation. In particular, business plans must:
(a) be no more than three months old on the date the application was made;
(b)include satisfactory evidence that the principal applicant had access to sufficient capital to finance the business proposal;
(c) include realistic financial forecasts and evidence to satisfy a Business Immigration Specialist that the principal applicant had business experience that was relevant to the business proposal;
(d)demonstrate to the satisfaction to the satisfaction of the Business Immigration Specialist the principal applicant’s knowledge about the proposed business and the New Zealand business environment; and
(e) include information about how the proposed business would benefit
New Zealand, and include sufficient supporting documentation.
[20] A business may be considered to benefit New Zealand if it promoted New
Zealand’s economic growth through for example:
(a) introducing new, or enhancing existing technology, management, or technical skills; or
(b) introducing new, or enhancing existing products and services; or
(c) creating new or expanding existing export markets; or
(d) creating employment for a New Zealand citizen or resident; or
(e) revitalising an existing business.
[21] A further requirement for the issue of a LTBV was that a Business Immigration Specialist must be satisfied that the principal applicant was genuinely interested in establishing the business in New Zealand and would abide by the conditions of the visa.
[22] Finally, Business Immigration Specialists had a residual discretion in that, if an application failed to meet the criteria set out in Immigration Instructions, they had
to weigh up all the circumstances of the case to see whether an exception to Immigration Instructions was justified. In doing this, they were able to take into account any circumstance that would warrant an exception.
Applicants’ business plan
[23] The applicants are equal shareholders of Mi Mi Company Ltd which was incorporated on 25 November 2005. The business was described as providing home renovation and development services in the Auckland area. Those services included primarily painting and plastering. The business provided labour and some materials, but also worked in conjunction with other developers, particularly building and construction sub-contractors. It was said the business was currently undergoing expansion and was poised to move into the area of property development through the purchase of land for development. The business would then sub-contract any work it was unable to complete with its own employees.
[24] The business plan advised that the applicants had put a deposit on a piece of land in Glenfield. They intended to finalise purchase of the land in the following six months, whereupon ownership of the land would be vested in Mi Mi Company Ltd. It was expected that moving into overall property development as opposed to acting as a subcontractor would expand company revenue; would require the employment of additional staff; would consolidate and expand relationships with other contractors/developers and would expand the company’s customer base. The principal applicant would manage the company and be responsible for all necessary administration. Her husband would primarily be working as a tradesman. The principal applicant may also undertake and assist in trade activities from time to time. The business employed one full time employee in addition to the applicants who also worked as a tradesman.
Immigration New Zealand decision
[25] By letter dated 25 September 2013, Immigration New Zealand declined the application for an LTBV because the Business Immigration Specialist was unable to conclude that Ms Shi as principal applicant had business experience that was relevant to the business proposal. He was also not satisfied that Ms Shi was
genuinely interested in establishing a business in New Zealand, and would abide by the conditions of the visa.
[26] While the Business Immigration Specialist acknowledged that Ms Shi had some participation in the operation of the existing painting business, he was still unable to conclude that the documentary evidence provided in support of the application had clearly demonstrated that, as the principal applicant, Ms Shi had business experience that was relevant to the proposal of operating a property development business. In arriving at that conclusion, the Business Immigration Specialist considered that she had not owned or operated any property development business as a self-employed business owner/operator in the past. He also remained unsatisfied that the claimed experience through operating a painting business or Ms Shi’s observation of the property development industry, could reasonably be considered as business experience that was relevant to the applicants’ business proposal, which was to operate a property development business.
[27] In addition, the Business Immigration Specialist did not agree that any claimed experience that was unlawfully acquired could be reasonably considered as relevant business experience in an application under the LTBV category. He noted that self-employment is defined in the LTBV instructions as lawful, active involvement in the management and operating of a business in New Zealand. He was therefore of the view that Ms Shi’s unlawful involvement in the operation of Mi Mi Company Ltd could not be considered as self-employment, given the fact that the significant part of the claimed experience was not lawfully acquired. This was during the period when the applicants were unlawfully living in New Zealand between 2004 and 2010.
[28] As to whether Ms Shi was genuinely interested in establishing a business in New Zealand that would abide by the conditions of the visa, the Business Immigration Specialist noted that the applicants had a lengthy history of overstaying in New Zealand and operating a business unlawfully. That was not disputed.
[29] Finally, the Business Immigration Specialist also said that he had carefully considered the application to check whether an exception to the Immigration
Instructions could be justified. However, he could find no reason in the applicants’
case to make an exception to the requirements of the Immigration Instructions.
The Law
[30] Section Section 4(1) of the Judicature Amendment Act 1972 provides:
(1) On an application … which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.
(emphasis added).
[31] The decision to not grant the applicants a LTBV was made under s 45 of the
Act:
45 Grant of visa generally matter of discretion
(1) No person is entitled to a visa as of right.
(2) In determining a visa application, the Minister or, subject to any special direction, an immigration officer, in his or her discretion,—
(a) may grant or refuse to grant a visa; and
(b) regardless of the class and type of visa that was applied for, may grant a visa of any class and type; and
(c) may impose conditions on the visa granted, or vary or waive conditions that would otherwise apply to it.
(3) This section applies unless any provision in this Act expressly provides otherwise.
[32] It was therefore an exercise of statutory power in terms of the definition of statutory power of decision in s 3 of the Judicature Amendment Act 1972. All remedies available under the Judicature Amendment Act are discretionary. The
common law provides grounds of judicial review: illegality, irrationality, and procedural impropriety.2
[33] Applying the Immigration Instructions, the business immigration specialist declined the application because he could not conclude that Ms Shi had business experience relevant to her business proposal, and that the applicants were genuinely interested in establishing the business in New Zealand and would abide by the conditions of the LTBV. The applicants challenge the exercise of the business immigration specialist’s discretion, alleging that he failed to take into account relevant factors, or took account of irrelevant factors, in making his decision. They allege that the decision was procedurally unfair.
[34] The exercise of a discretionary power may be invalid if the decision-maker fails to take into account relevant considerations or takes into account irrelevant considerations.3 Failing to take a discretionary relevant factor into account may render a decision unlawful if the reason for excluding it involves an error of law.4
The approach is to determine whether the factor in question is or is not relevant to the empowering provision, and whether that factor actually influenced the decision.5
Determining what factors are relevant depends on the text and purpose of the statutory provision in question.6
[35] The effect of a finding that a decision-maker considered an irrelevant factor or failed to consider a relevant factor does not automatically invalidate the challenged decision. The test is whether the decision maker would have acted that way but for having considered the irrelevant factor, or having failed to consider the
relevant factor.7
2 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410-411, cited by Graham Taylor Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington, 2014) at 11.01.
3 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers,
Wellington, 2014) at 23.2.3(1).
4 Graham Taylor, above n 1, at 15.42.
5 Graham Taylor, above n 1, at 15.39.
6 Buller Electricity Ltd v Attorney-General [1995] 3 NZLR 344 (HC).
7 Attorney-General v Ireland [2002] 2 NZLR 222 (CA).
Grounds of review
[36] As noted above, judicial review focuses on the process for making decisions. Accordingly, counsel for the applicants identified five issues relating to the decision- making process. These were:
(a) Did Immigration New Zealand fail to take into account supporting documents and evidence provided by the applicants’ immigration adviser in support of the application?
(b)Did Immigration New Zealand fail to consider and weigh all circumstances of the application and consider it as an exceptional case when it failed to meet the criteria for the issue of a LTBV?
(c) Should Immigration New Zealand have taken into account the laws in China concerning the consequences of having more than one child in making its decision that Ms Shi was not genuinely interested in establishing a business in New Zealand and would not abide by the conditions of the visa?
(d)Did Immigration New Zealand need to consider the background to the grant of work permits to the applicants in 2010, in making its decision on the application for a LTBV?
(e) Did Immigration New Zealand correctly interpret the Tribunal’s direction that the applicants be issued with visas as an order to leave New Zealand within 12 months?
Failure to take into account supporting documents and evidence
[37] Counsel for the applicants submits that evidence put forward by their immigration adviser in his letter dated 30 August 2012, was not considered or specifically referred to in INZ’s decision. Counsel points to four specific matters:
(a) Ms Shi’s name is listed before that of her husband, Mr Li, on ASB Bank statements;
(b) Ms Shi is, in fact, an employee of Mi Mi Company Ltd;
(c) Ms Shi has managed and signed for Mi Mi Company Ltd about 16 agreements with contractors concerning work on a range of properties; and
(d) Ms Shi received a shareholder employee salary of $105,343.80 in the
2013 tax year as a result of working for Mi Mi Company Ltd.
[38] Counsel submits that the decline letter failed to consider and weigh the new evidence and instead focused on Ms Shi not previously having owned a similar business in the past.
[39] As noted above, Mr Li had in fact made an earlier application for a LTBV as principal applicant. That application was declined. The applicants then appealed to the Tribunal against their liability for deportation on the ground of being unlawfully in New Zealand. In its decision dated 3 August 2012, the Tribunal stated:
[24] The application was based on the husband’s painting business which he had been operating unlawfully since November 2005. A company had been incorporated with the appellants as shareholders and the husband sole director. The husband was the only person working in the business. INZ declined the application because the husband’s only relevant business experience was acquired while working here unlawfully. Further, the business did not meet the requirement that it benefit New Zealand and that there was no evidence it would create employment.
[40] On page 3 of the business proposal submitted with the present application for a LTBV with Ms Shi as the principal applicant, it is stated:
The applicants currently receive a shareholders salary. From 1 January
2013, the principal applicant [Ms Shi] has become an employee of the company.
[41] However, the business proposal goes on to state at page 10:
The principal applicant [Ms Shi] has been working in the company, Mi Mi Company Ltd, for some 8 years; since its inception. It is acknowledged that during this period much of the time she did not have a valid work visa (or permit). However, it is also submitted that she did have a substantive period of time where she worked for Mi Mi Limited when she was on a valid permit/visa.
[42] The business proposal also stated that Ms Shi would manage the company and be responsible for all necessary administration activities, while her husband would primarily be working as a tradesman. It was stated that Ms Shi may also undertake and assist in trade activities from time to time. In response to concerns expressed by the Business Immigration Specialist that Ms Shi did not have sufficient relevant business experience in property development, the applicants’ immigration adviser stated in his letter dated 30 August 2013:
It is submitted that while the husband was the sole director of the business as you have noted, given the nature of the business, given the fact that both applicants worked fulltime in the business, and given the fact that the applicants are husband and wife, it is reasonable to conclude that they had equal responsibility for managing and operating the business. Also the applicants submit that it was the principal applicant who was responsible for doing all of their financial and administrative paperwork as the husband didn’t have sufficiently adequate English language skills to do so. For example, although the husband signed the contracts up through to last year, the preparation for the contracts was done by his wife. The contracts are now signed his wife Liangying Shi.
[43] In his decision the Business Immigration Specialist stated he had carefully considered all the information provided to him by the applicants. He acknowledged that some of the additional information provided had allayed concerns he had raised in a letter sent to the applicants on 12 August 2013 (seeking comment on potentially prejudicial information), and that Ms Shi had participated in some way in Mi Mi Company Ltd. However he could not conclude that Ms Shi had the necessary experience.
In arriving at this conclusion, I have considered that you have not owned or operated any property development business as a self-employed business owner/operator in the past. I remain unsatisfied that the claimed experience through operating a painting business or your observation of the property development industry could be reasonably considered as business experience that is relevant to this particular business proposal, which is to operate a property development business.
[44] A decision-maker does not have to specifically refer to every piece of evidence filed in support of an application.8 The fact that Ms Shi is now an employee and signs the painting contracts on behalf of her husband as well as receiving a shareholder salary does not, in my view, call into question the decision- making process undertaken in this case. The Business Immigration Specialist specifically states that he had carefully considered the immigration adviser’s
response as well as the additional information provided on 30 August 2013. He acknowledged that some of the concerns raised in his previous letter had been addressed by the additional information provided and it therefore cannot be said that he failed to take into account all relevant information. The weight to be given to any individual piece of evidence is a matter for the decision-maker who has to undertake an evaluative process. Where there is evidence that information was received by a
decision-maker, it is presumed that the information was considered.9 The
presumption has not been rebutted.
[45] The Business Immigration Specialist was entitled to conclude that Ms Shi did not have sufficient experience in property development (the business proposal talked of Mi Mi Company Ltd being poised to move into the area of property development) and had limited involvement in her husband’s painting business.
Failure to consider application as exceptional case
[46] Counsel for the applicants refers to Immigration Instruction BC8, which provides that if an application fails to meet the criteria set out in the instructions, Business Immigration Specialists must weigh up all the circumstances of the case to see whether an exception to Immigration Instructions is justified. In doing this, they will take into account any circumstance that would warrant an exception. Counsel submits that a number of circumstances were not identified or weighed up in the decision-making process. Firstly, Mi Mi Company Ltd employs a New Zealand resident and a New Zealand citizen. This “signifies” the relevant business experience requirement. Counsel also submits that gender issues were not taken into
account, in that the decline letter failed to take into account the prioritising of the
8 R v Nakhla (No 2) [1974] 1 NZLR 453 (CA).
9 Zanzoul v Removal Review Authority HC Wellington CIV-2007-48501333, 9 June 2009 at [93].
male over the female in a Chinese family. It also failed to take into account the Mi Mi Company Ltd balance sheet or financial performance and who of the first and second applicant was likely to be responsible for this. Finally, the decline letter failed to appreciate that Ms Shi’s husband had failed an earlier LTBV application and despite this, the business both survived and appeared to have prospered in what are generally regarded as difficult economic times.
[47] The Business Immigration Specialist did however specifically note that he had considered Ms Shi’s application as an exception to Immigration Instructions when he stated:
I also carefully considered your application to check if an exception to the immigration instructions can be justified. However, I can find no reason in your case to make an exception to the requirement of immigration instructions.
[48] Although the Business Immigration Specialist does not specifically refer to the matters he considered in declining to accept the application as an exception to Immigration Instructions, I am of the view that he did not have to restate all the matters set out in the application. Whether to accept an application as an exception to Immigration Instructions is clearly a discretionary exercise and I am not persuaded that any of the four matters raised by counsel is a mandatory factor to be taken into account in such an exercise. They are not factors that would “warrant an exception”, in the language of the Immigration Instructions.
China’s one child policy
[49] Counsel for the applicants submits that Ms Shi had a genuine humanitarian reason for living unlawfully in New Zealand and it was wrong therefore for Immigration New Zealand to determine that she would not abide by the conditions of a visa. Counsel submits that the decision did not take into account China’s one child policy, which in counsel’s submission was the reason for the applicants remaining in New Zealand, and the reason why they have not abided by previous conditions. The applicants’ first child was born on 8 October 1994 and the applicants were living unlawfully in New Zealand from 12 April 2004. The applicants’ second child was born in New Zealand on 19 September 2004 and accordingly Ms Shi must have
known she was having a second child at the time she decided to remain unlawfully in New Zealand. The applicants’ immigration adviser brought this to the attention of Immigration New Zealand and submitted that the applicants’ second son would have decreased access to quality healthcare and education in China. He would also be at risk of being forced to work in unsafe conditions as a child labourer as part of a school’s “educational” programme. Finally, social compensation fees may be levied because the applicants had a second child.
[50] These concerns were however raised by the applicants with the Tribunal to which they appealed after their first application for a LTBV was dismissed. The Tribunal dealt with the possible hardship under China’s one child policy as follows:
Hardship under one child policy
[34] The appellants are from Fujian province. Their elder son was born in China and their younger child in this country. According to the information about the application of the one child policy in Fujian in the material from the RRT provided in support of the appeal, couples in Fujian may obtain permission to have a second child only in limited circumstances, the most common seemingly being if they are a rural couple with a daughter. The appellants’ second child would therefore appear to have been born outside the regulations governing family planning policy in Fujian. Breaches of the one child policy attract a “social compensation fee” which can be as much as two to three times the average disposable income of an urban or rural couple.
[35] RRT Research Response CHN 30505 suggests that some local authorities in Fujian enforce the application of the family planning regulations more vigorously than others, with the rules being more strictly enforced in the larger cities than in rural areas where more than half of all families have a second child. The husband was employed as a farm manager prior to coming to New Zealand, so the couple presumably have a rural background.
[36] Research Response CHN 30505 also states that children born outside Fujian, including overseas, are not counted in assessing penalties. The appellants, then, will likely avoid the significant outlay necessary to meet the social compensation fee they would potentially have been liable for had their second child been born in China. Even so, it is not suggested that the estimated fee stated in Country Advice China CHN 35990 of between AUD4,888 and AUD7,332 for an urban couple, would be beyond their ability to pay.
[37] Rather, it is submitted that compulsory abortions and sterilisations still occur in Fujian and to avoid this, the appellants would be required to pay a fee or fine if the wife were to become pregnant. However, it would seem that compulsory abortions and sterilisations are far less common than in the
1980s. Moreover, there is no evidence that the appellants are anxious to have another child. Their younger child is nearly eight years old and the
wife aged 42 years. If, on return to China, she were to become pregnant she may well have to pay a fine but, on the history, that is unlikely to happen, while forced abortion or sterilisation are relatively easy to avoid through payment of a fee not considered excessive by middle-class Chinese standards.
[51] The Tribunal concluded that there were no exceptional humanitarian circumstances that would make it unjust or unduly harsh for the applicants to be deported from New Zealand.
[52] Whilst he did not expressly refer to China’s one child policy, this information was before the Immigration Specialist and he is therefore presumed to have taken it into account unless this presumption is rebutted. The Business Immigration Specialist was entitled to have regard to the evidence and findings of the Tribunal as to China’s one child policy. He was therefore entitled to conclude that he was not satisfied that the applicants would abide by the conditions of a visa, in that they had overstayed in New Zealand for a significant period of time, being over six years from 12 April 2004 and while overstaying had undertaken business activities unlawfully without any valid visa or permit that allowed them to do so. The possible consequences of the application of China’s one child policy on them and their second son if they were to return to China were not of sufficient substance to excuse such lawbreaking.
[53] Even if the Business Immigration Specialist did fail to consider this relevant factor, the test is whether the decision-maker would have acted that way, but for having failed to consider that relevant factor.10 I am satisfied that the Business Immigration Specialist would have reached the same decision. The reason for the applicants not complying with conditions, being fear of China’s one child policy, would likely remain when their visa would expire, if it had been granted.
Grant of work permits in 2010
[54] Counsel for the applicants submits that in some way the granting of six month open work permits to the applicants in 2010 precluded Immigration New
Zealand from questioning the applicants’ character or bona fides. Counsel submits
10 Attorney-General v Ireland [2002] 2 NZLR 222 (CA).
that had the fact that the appellants been living unlawfully in New Zealand for six years been such as to trigger a bona fides concern, Immigration New Zealand would have removed or deported the applicants in 2010 instead of granting them open work permits.
[55] Counsel notes that Immigration New Zealand had conducted a humanitarian interview with the applicants in March 2009, following which they were advised to leave New Zealand. However, after the applicants filed judicial review proceedings in the High Court, Immigration New Zealand agreed to conduct a fresh humanitarian interview. This did not proceed. Instead, Immigration New Zealand invited the applicants to apply for a special permit under s 35A of the Immigration Act 1987 when the applicants’ immigration adviser expressed a concern as to the case officer allocated to the interview. Subsequently the applicants were both granted six month open work permits so that an application could be made for a LTBV. Counsel therefore submits that it is unfair of Immigration New Zealand to now take into account the unlawfulness of the applicants’ residence in New Zealand from 2004 to
2010 as well as the fact they were working unlawfully during that time.
[56] I am of the view, however, that granting the applicants six month open work visas to enable them to remain in New Zealand lawfully while their application for a LTBV was assessed does not oblige Immigration New Zealand to grant the LTBV. There is a real difference between a short-term open work permit and a LTBV. A short-term open work permit does not necessarily lead to permanent residence in New Zealand whereas a LTBV was seen as a route for enabling persons to meet the relevant criteria for permanent residence under the entrepreneur category. The grant of six month open work permits to the appellants was an indulgence to enable them to remain lawfully in New Zealand so that their application for a LTBV could be considered. I am of the view that the Business Immigration Specialist did not fall into error when he did not refer to or take into account the grant of six month open work permits to the applicants in 2010.
Immigration and Protection Tribunal’s direction
[57] The Tribunal, after declining the applicants’ humanitarian appeals, directed that the applicants be granted six month open work visas in the following terms:
[61] As the appellants are running a business and own property, pursuant to section 216(1)(b) of the Act, the Tribunal orders that the appellants are granted open work visas for six months to enable them to remain in New Zealand for the purposes of getting their affairs in order.
[58] Counsel for the applicants submits that the grant of open work visas under s
216(1)(b) enabled the applicants to lawfully apply for a LTBV, notwithstanding the comments of the Tribunal that the visas were “for the purposes of getting their affairs in order.” Alternatively, counsel submits that it is procedurally unfair that, having accepted the application for a LTBV, Immigration New Zealand would now use the application as evidence that the applicants would not comply with the requirements of a visa. Simply put, the application was lawfully made and therefore did not become an issue of character or bona fides.
[59] Section 216 of the Act provides:
216 Tribunal may make order delaying deportation if appeal unsuccessful
(1) On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order—
(a) that the deportation of the appellant be delayed for a period not exceeding 12 months, commencing on the date of the Tribunal's decision; or
(b) that a temporary entry class visa, valid for a period not exceeding 12 months, commencing on the date of the Tribunal's decision, be granted to the appellant.
(2) If the Tribunal orders the grant of a visa under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.
[60] For the purpose of this proceeding, counsel for Immigration New Zealand accepted that there appears to be nothing to stop a person who has been granted a visa under s 216(1)(b) from applying for another temporary visa. However, I agree
with counsel that the actions taken by the applicants in filing a second application for a LTBV is clearly not what the Tribunal contemplated in granting them six month open work visas.
[61] I acknowledge that the Business Immigration Specialist took into account the fact that the applicants did not leave New Zealand as they were asked to, which he considered was the sole purpose served by the granting of further visas by the Tribunal, in assessing the likelihood that the applicants would abide by the conditions of a visa. I am of the view that this indeed is one of many factors that the Business Immigration Specialist could take into account notwithstanding that there is no specific statutory prohibition on applying for another temporary visa within the currency of the one granted at the direction of the Tribunal.
[62] In any event, this was only one of a number of factors taken into account by the Business Immigration Specialist in reaching his conclusion that he was not satisfied that the applicants would abide by the conditions of a visa. In this regard, I am of the view that he was entitled to rely on the immigration history of the applicants and, in particular, the large number of years in which the applicants have both lived and worked unlawfully in New Zealand.
Decision
[63] In light of my finding on the issues advanced by counsel for the applicants, the application for judicial review is dismissed. The applicants have failed to persuade me that Immigration New Zealand took into account any irrelevant matter, or failed to take into account any relevant matter, or that the decision was plainly
wrong. Immigration New Zealand is entitled to costs on a 2B basis.
Woolford J
7
0
1