Zhang v Chief Executive, Ministry of Business, Innovation and Employment

[2020] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001206

[2020] NZHC 2495

UNDER

Sections 245 of the Immigration Act 2009

IN THE MATTER

of application for leave to appeal to the High Court against a determination of the

Immigration and Protection Tribunal

BETWEEN

JIA ZHANG
Applicant

AND

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

.../intituling cont over

Hearing:	23 September 2020
Counsel:	RE Harrison QC for Applicant CP Paterson for Respondent
Judgment:	23 September 2020

LEAVE JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 23 September 2020 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. Mark Lee Lawyers, Auckland. RE Harrison QC, Auckland.

ZHANG v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 2495 [23 September 2020]

CIV-2020-404-001207

UNDER  Section 249 of the Immigration Act 2009 IN THE MATTER  of an application to the High Court for

leave to bring judicial review proceedings

BETWEEN  JIA ZHANG

Applicant

ANDCHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

[1]    Jia Zhang was declined residence under the entrepreneur category. He seeks permission to appeal and bring judicial review. Most of the proposed arguments concern what it means to be self-employed, more  particularly,  what  constitutes “full time active involvement in the management and operation of a business” established by the entrepreneur, here, a wine export business to China.

[2]    On behalf of Mr Zhang, Mr Harrison QC contends Immigration New Zealand, and on appeal, the Immigration and Protection Tribunal, erred in law in relation to these concepts. Mr Harrison proposes to argue these are qualitative, not quantitative, and if quantitative; some measure of identified assessment is required.

[3]    With a little encouragement, Ms Paterson on behalf of the Crown accepted the proposed arguments involve a question of law.1 However, Ms Paterson contended no matter of general or public importance arises. I disagree. This category of residency is important. To the best  of everyone’s knowledge, no  case  has  explored what  “full time active involvement in the management and operation of a business” means in the context of self-employment, this being a prerequisite for residency under the entrepreneur category.

[4]    The remaining arguments are related process points in the judicial review claim. The claim extends to Immigration New Zealand’s approach to what constitutes self-employment, and its alleged failure to warn Mr Zhang of the need to keep time records to satisfy this requirement.

[5]    I was sceptical whether this added anything to the proposed appeal; and inclined to restrict permission to it. However, Mr Harrison said the Immigration and Protection Tribunal declined to receive fresh evidence from Mr Zhang and unless judicial review were permitted (with the breadth of associated remedies), Mr Zhang may be forced to confront the same difficulty, in turn impairing the likelihood of appellate success. Ms Paterson very fairly acknowledged as much.

[6]    This led to argument about whether s 247 or s 249 of the Immigration Act 2009 governed the proposed judicial review. I consider the latter applies, but nothing turns

1      Immigration Act 2009, s 245.

on this as I am satisfied permission should be granted, essentially for the same reasons as the proposed appeal.

[7]    So, I grant permission for the proposed appeal and judicial review claim—each as pleaded. I state the obvious: beyond each being arguable, the grant of permission says nothing about likelihood of success.

[8]    I anticipate the appeal and judicial review claim will be heard together.2 I place both in the judicial review list on Friday, 9 October 2020 for directions facilitating a joint hearing.

[9]    Mr Harrison sought costs. Ms Paterson, not unreasonably, asked for time to respond. I fix this timetable and impose a seven-page limit on the length of each cost submission:

(a)Mr Zhang’s are to be filed and served by 7 October 2020.

(b)The Crown’s are to be filed and served by 14 October 2020.

……………………………..

Downs J

2      Immigration Act, s 249A.