HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 2816

HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2018] NZHC 2816 [31 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001254[2018] NZHC 2816UNDER THE Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial review ofdecisions under the Immigration Act 2009BETWEEN HIEN NGOC DUONGFirst ApplicantMAI THI PHUONG PHAMSecond ApplicantLINH PHAM GIA DUONGThird ApplicantVI PHAM TUONG DUONGFourth ApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentContinued /Hearing: 18 September 2018Appearances: M Y Kim and K Kim for the ApplicantsI Auld and M Urlich for the RespondentJudgment: 31 October 2018JUDGMENT OF HINTON JCIV-2018-404-001662UNDER THE Immigration Act 2009IN THE MATTER OF an application under s 245 for leave toappeal a decision of the Immigrationand Protection TribunalBETWEEN HIEN NGOC DUONGFirst ApplicantAND MAI THI PHUONG PHAMSecond ApplicantAND LINH PHAM GIA DUONGThird ApplicantAND VI PHAM TUONG DUONGFourth ApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentCIV-2018-404-001663UNDER THE Immigration Act 2009IN THE MATTER OF an application under s 249 for leave tobring judicial review proceedings inrespect of a decision of the Immigrationand Protection TribunalBETWEEN HIEN NGOC DUONGFirst ApplicantAND MAI THI PHUONG PHAMSecond ApplicantAND LINH PHAM GIA DUONGThird ApplicantAND VI PHAM TUONG DUONGFourth ApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentContinued /AND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTSecond RespondentThis judgment was delivered by me on 31 October 2018 at 2.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:M K Law, AucklandCrown Law, Wellington[1] The primary matters before me are applications for leave to appeal and forleave to bring judicial review proceedings in respect of a decision of the Immigrationand Protection Tribunal (the Tribunal) declining Mr Duong's application for aresidence visa under the skilled migrant category.[2] Mr Duong has also brought judicial review proceedings in respect of a decisionby Immigration New Zealand (INZ) to decline a temporary work visa under theessential skills category.[3] The key issues raised in this case are whether INZ and the Tribunal applied thecorrect standard of proof, and whether the Tribunal exceeded its powers under s 188of the Immigration Act 2009 (the Act).[4] The second, third and fourth applicants in this proceeding were not parties tothe appeal of the residence decision in the Tribunal, nor were they applicants for thegrant of the temporary work visa. Accordingly, they do not have standing to bringproceedings for leave, or review, in respect of those decisions. Mr Kim, for Mr Duong,did not argue to the contrary.Background to the Tribunal's residence decision[5] Mr Duong first came to New Zealand in 2013 on a student visa. In March2016, he was granted a further post-study work visa which was employer-assisted, theemployer being Traduco Vina Ltd, trading as Fresh & Save, Albany (Fresh & Save).[6] On 20 April 2016, Mr Duong applied for a residence visa under the skilledmigrant category, claiming 50 points for his employment at Fresh & Save.[7] The relevant immigration instructions at SM7.15 provided:Additional requirements for skilled employmenta. skilled employment only qualifies for points if the employment is:ii. genuine; andv. the employment was not offered as a result of payment made by theapplicant (or their agent) to the employer (or their agent) in exchange forsecuring that offer of employment. Such practices are contrary to theprinciples of the Wages Protection Act 1983, as well as to immigrationinstructions.[8] In a letter dated 1 May 2017, INZ raised the concern that Mr Duong'semployment may not be genuine and may have been offered as a result of payment tohis employer. INZ referred to a number of transactions, including three payments inMarch 2015 totalling $14,000 (the March 2015 payments); three payments inNovember 2015 totalling $10,000 (the November 2015 payments); and nine smallerEftpos payments, totalling roughly $2,100, made throughout 2015 (the Eftpospayments).[9] On 22 May 2017, Mr Duong's agent wrote to INZ with explanations.[10] In respect of the March 2015 payments of $14,000, the agent said that themoney had been paid to Fresh & Save to purchase used shop equipment. He providedvarious pieces of evidence, none of which directly evidenced the sale and purchase ofthe equipment from Fresh & Save.[11] In respect of the November 2015 payments, these were said to have been madebecause Mr Duong was unable to bank his employer's takings before 5.00 pm, aconsequence of which would have been that an important meat supplier(Wilson Hellaby) would not have been paid the next day, as there would have beeninsufficient funds in the employer's account. Mr Duong stated that, to ensure thepayment was made, he deposited $10,000 of his own money into his employer'saccount.[12] In respect of the Eftpos payments, Mr Duong argued that these were for thepurchase of groceries.[13] On 6 October 2017, INZ declined the residence application on the grounds thatit was not satisfied Mr Duong's employment met the requirements of residenceinstructions SM7.15(a)(ii) and SM7.15(a)(v) that his employment was genuine, andhad not been offered as a result of payments that he had made to his employer.[14] In respect of the March 2015 payments, INZ stated that Mr Duong had notprovided any invoices or evidence to substantiate his claim of purchasing equipmentfrom his employer. Inter alia, INZ referred to lease agreements the employer hadpurported to enter into for new equipment, pointing out that the timing of thoseagreements was different to that which the agent had set out.[15] In respect of the November 2015 payments, INZ considered that there wasevidence Mr Duong's employer had sufficient funds to pay the Wilson Hellabyaccount. INZ noted an inconsistency with the amounts Mr Duong had purported tobank into his employer's account, with $3,000 apparently not showing on theemployer's bank statement. INZ also noted that Mr Duong had not provided anyevidence to show that the $10,000 had been repaid to him.[16] In respect of the Eftpos payments, INZ stated that Mr Duong had not providedany invoices or other substantial evidence to support his claim that these paymentswere for groceries. INZ also noted that Mr Duong shopped at Pak n Save, which INZconsidered went against the credibility of his explanation.[17] Mr Duong appealed to the Tribunal.[18] The grounds for an appeal to the Tribunal against a decision to decline aresidence visa are twofold. The first ground is that the relevant decision was notcorrect in terms of the residence instructions applicable at the time.1 The secondground is that the special circumstances of the appellant are such that an exception tothose residence instructions should be considered.[19] Mr Duong appealed to the Tribunal on both grounds and failed on bothgrounds, but in his applications for leave he does not challenge the finding that therewere no special circumstances.1 Immigration Act 2009, s 187(4).[20] In its decision, dated 28 June 2018,2 the Tribunal decided to give Mr Duongthe benefit of the doubt with regard to the Eftpos payments, and determined that INZwas incorrect in its assessment of the November 2015 payments, insofar as it was notopen on the evidence to find that Mr Duong's employer had sufficient funds at therelevant time, to pay Wilson Hellaby. I note in connection with the November 2015payments, that Mr Duong applied to introduce new evidence from his wife Ms Pham,which the Tribunal declined.[21] However, the Tribunal agreed with INZ with regard to the March 2015payments, that Mr Duong had not established that the payments were for the purchaseof equipment. On that basis, the Tribunal held that the decision of INZ to declineMr Duong's residence visa application was correct because he was caught bySM7.15(a)(ii) and SM7.15(a)(v) of the residence instructions.Application for leave to appeal the Tribunal's residence decisionThe application itself[22] In his application, Mr Duong sets out only two grounds for seeking leave toappeal: first, that the Tribunal erred by refusing to consider Ms Pham's statement andsecond, that the Tribunal applied an incorrect standard of proof.[23] The first ground relating to Ms Pham's statement was abandoned at the start ofthe hearing, leaving only the second.[24] However, in his submissions for the hearing, Mr Kim added a new ground –whether the Tribunal had exceeded its powers under s 188 of the Immigration Act 2009(the Act).[25] I therefore need to consider two grounds:(a) Error of law by applying incorrect standard of proof.(b) Error of law by exceeding powers under s 188 of the Act.2 VU (Skilled Migrant) [2018] NZIPT 204604.Law on seeking leave to appeal from the Tribunal[26] An application for leave to appeal can only be granted if there is a question oflaw which is both capable of bona fide and serious argument, and by reason of itsgeneral or public importance, or for any other reason, is a question of law that oughtto be submitted to this Court.3 Not every alleged error of law is of sufficientimportance, either generally or to the parties, to justify further pursuit of litigation.4[27] While there are circumstances where the Tribunal's factual findings can be soincorrect as to constitute an error of law, Mr Duong does not argue here that there wereerrors of fact that were so incorrect as to constitute an error of law.First ground – did the Tribunal apply an incorrect standard of proof?[28] On the face of the Tribunal's decision, it seems to have applied the correctstandard of proof, namely on the balance of probabilities. The Tribunal said that INZhad reached the decision to decline Mr Duong's application on the basis that INZ was"not satisfied" his employment was genuine because it had been offered as a result ofpayments made by him to his employer.5 The Tribunal's finding was that this decisionto decline Mr Duong's residency application was correct.6 The term "satisfied", ascontained in the immigration instructions, and as generally understood, requiressatisfaction on the civil standard of proof, being the balance of probabilities.7 Thereis nothing on the face of the Tribunal decision to suggest that it applied a higherstandard, (nor on the face of the INZ decision).[29] Mr Kim says he accepts that, in the face of payments from an employee to anemployer, the employee needs to explain that the payments are not for purposes ofsecuring employment. However, he says that is all Mr Duong was required to do. Heargues that both INZ and the Tribunal were in error in requiring Mr Duong to provethat the payments were made for the reasons he provided, namely the purchase ofequipment, purchase of groceries, and as a short-term advance to his employer.3 Immigration Act 2009, s 245(3).4 Minister of Immigration v Jooste [2014] NZCA 23.5 VU (Skilled Migrant) [2018] NZIPT 204604 at [2].6 At [53].7 Fric v Immigration and Protection Tribunal [2016] NZHC 1208 at [98].[30] It is not possible to finely divide the exercise as Mr Kim endeavours to do.INZ (and the Tribunal) were entitled to take the view in these circumstances thatproving that the payments were not for employment, and proving what they were for,were two sides of the same coin. INZ obviously was not satisfied that the materialprovided to them met the requirements for a skilled migrant residence visa and inparticular, it was concerned about the payments made to Fresh & Save. INZ asked forexplanation. INZ was not satisfied with the explanation it received and thereforeconcluded that Mr Duong's employment was not genuine. It is all part of the sameexercise. The Tribunal then said that, although there were concerns around findingsby INZ that the November 2015 payments were not genuine, it agreed with theconclusion in respect of the March 2015 payments, and that was sufficient to form theview that the employment was not genuine.[31] I cannot discern any serious argument that the Tribunal applied an incorrectstandard of proof when deciding whether INZ was correct or not.[32] While not advanced as such, to the extent Mr Kim's argument is an attempt tochallenge the assessment made by INZ of the credibility, reliability and weight of theinformation and evidence provided by Mr Duong, this would not amount to a questionof law. It is well accepted that the weight given to evidence is a matter for thedecision-maker to determine.8 Even if it amounted to a question of law, I do notconsider it gives rise to any issue of general or public importance.[33] Mr Kim raises a related point, which he stresses is secondary, that INZ shouldhave asked for more information if they were not satisfied with the information firstprovided. That, of course, is not a criticism that can be levelled at the Tribunal and itis the Tribunal's decision for which leave is sought to appeal. In any event, it is notcorrect. In terms of the relevant law, an applicant for a visa has to ensure that allinformation they wish to have considered, is provided when their application forresidence is made.9 The immigration officer considering the application is not obliged8 Minister of Immigration v Zhang [2013] NZCA 487 at [34]; Guo v Immigration & ProtectionTribunal [2014] NZHC 804 at [55], [79] and [105].9 Immigration Act 2009, Section 58(1).to seek any further information, and may determine the application on the basis of theinformation provided.10[34] In Fric v Immigration and Protection Tribunal, the Court held that a similarchallenge to the standard of proof applied by the Tribunal did not give rise to issues ofgeneral, or public importance.11 I agree with the respondent that the same reasoningapplies in this case.Second ground – did the Tribunal exceed its powers under the Act?[35] Mr Kim raised in his submissions a two-pronged argument that the Tribunalexceeded its powers under the Act in the process of finding that INZ was correct. Ihave already noted that this was not a point raised in the application for leave to appeal.I will consider this argument in any event.[36] Mr Kim submits:(a) First, the Tribunal substituted its own assessment of the correctness ofthe decision to decline a residence class visa, when it was only entitledunder s 188 of the Act to determine whether INZ had made a correctdecision or not; and(b) Second, that the Tribunal failed to produce a complete decision, as itfailed to respond to the entirety of Mr Duong's submissions regardingerrors in the INZ decision-making process with respect to the Eftposand November 2015 payments.[37] Mr Kim advances three points which, together or separately, lead him to saythe Tribunal overstepped its role and substituted its own assessment of the INZdecision. These are:(a) The Tribunal raised a new concern about the use of a descriptor "paidveges", being the label Mr Duong gave to the March 2015 payments.10 Immigration Act 2009, Section 58(2).11 Fric v Immigration and Protection Tribunal [2016] NZHC 1208 at [102].(b) The Tribunal admonished Mr Duong for failing to provide a writtenstatement from his agent, outlining any mistakes made in the agent'swritten submissions, when INZ had not requested such a statement.(c) The Tribunal raised a new concern about Mr Duong's employer'sdeclaration of the November 2015 payments as taxable income.[38] There is no question but that the Tribunal cannot substitute its own assessmentfor that of INZ. However, the Tribunal did not do that here. The finding by INZ thatMr Duong's employment was not genuine was based on its assessment of the threetransaction sets. However, a correct assessment by INZ that one transaction setshowed that Mr Duong had paid his employer for employment was sufficient for theTribunal to conclude that INZ was correct to not be satisfied that Mr Duong'semployment was genuine.[39] Turning to the three specific "overstep" points raised by Mr Kim, the descriptor"paid veges", was on the face of the decision a passing observation by the Tribunal,which I consider did not have any effect on the Tribunal's ultimate decision that INZwas correct to decline Mr Duong's residence application. On the basis of the factorsthat INZ did consider, and to which the Tribunal referred, there was sufficient materialfor the Tribunal to determine that INZ had made a correct decision. Therefore, evenif the Tribunal did overstep the mark in bringing such a concern to light, I do notconsider such an error to be of sufficient general importance to justify granting leavefor an appeal.[40] In respect of (b), I do not accept that the Tribunal was "admonishing"Mr Duong for failing to provide it with a written statement from his agent clarifyingany mistakes. Mr Kim was arguing that the agent had made mistakes. The Tribunalsimply commented that if the agent had made a mistake, it had not been provided witha written acknowledgement from the agent to that effect. The Tribunal was simplypointing out there was nothing to back up Mr Kim's submission. That is notoverstepping INZ. The Tribunal's finding that the decision of INZ was correct wasclearly not influenced by any failure, on Mr Duong's part, to provide a statement fromhis agent.[41] As to (c) above, the Tribunal found that the decision of INZ was correct on thebasis of the March 2015 payments, so the point concerning the November 2015payments can have had no ultimate effect on the outcome of the appeal. The Tribunalheld that INZ was entitled to find that Mr Duong's employment was not genuine, onthe basis that INZ was not satisfied that the March 2015 payments were not for thepurposes of securing employment, despite giving the benefit of the doubt to Mr Duongregarding the Eftpos payments, and finding that INZ was incorrect in its assessmentof the November 2015 payments.[42] None of the arguments that the Tribunal exceeded its jurisdiction under s 188raises a question of law capable of bona fide and serious argument, which by reasonof its general or public importance, should result in leave being granted. The Tribunaldid not substitute its own assessment for that of INZ, but instead upheld the correctnessof the INZ decision, albeit on a narrowed basis. The Tribunal accepted that on thebasis of the evidence that INZ considered regarding the March 2015 payments, INZwas entitled to refuse Mr Duong's application, because it could not be satisfied thathis employment was genuine.[43] In respect of Mr Duong's second argument under this head (failing to producea complete decision by failing to respond to issues relating to the Eftpos and November2015 payments), again the Tribunal's finding that INZ was correct, rested on thecorrectness of the assessment by INZ of the March 2015 payments. Not consideringpoints relating to the other two categories of payments, cannot be said to constitute anerror of law that is seriously arguable or of sufficient general importance to warrantgranting leave for an appeal.Conclusion on application for leave to appeal the Tribunal's residence decision[44] It follows from the above that I do not consider that Mr Duong has made outany grounds for leave to appeal.Application for leave to review the Tribunal's residence decisionThe application itself[45] Mr Duong's application for leave to review sets out three grounds:(a) The Tribunal failed to properly consider relevant matters.(b) The Tribunal took into account irrelevant matters.(c) The Tribunal exceeded its powers under s 188 of the Act.Law on seeking leave for judicial review of the Tribunal decision[46] For leave to be granted to bring judicial review proceedings in respect of adecision of the Tribunal, s 249 of the Act requires the Court to have regard to threematters. The first is whether the proposed review proceeding involves issues thatcould be adequately dealt with in an appeal against the Tribunal's decision.12 If theissue can be dealt with in an appeal, then leave to bring judicial review proceedings isunlikely to be granted.13 Secondly, there must be a question capable of bona fide andserious argument.14 The third consideration is whether the issues in the judicial reviewproceeding, by reason of their general or public importance, or for any other reason,ought to be submitted to the High Court for review.15Did the Tribunal fail to consider relevant matters?[47] Mr Duong's first ground for seeking leave to review the Tribunal's decisionraises two "relevant matters" which he says the Tribunal failed to take into account.These are:(a) The Tribunal failed to consider Mr Kim's submission to it that INZ hadnot properly considered the evidence on the balance of probabilities.12 Immigration Act 2009, s 249(6)(a).13 SK v Immigration & Protection Tribunal [2015] NZCA 26 at [13].14 Although this point is not expressly addressed in s 249, see Kumar v Minister of Immigration[2016] NZHC 1593 at [35]; and Allada v Immigration and Protection Tribunal [2014] NZHC 953.15 Immigration Act 2009, s 249(6)(b).(b) The Tribunal failed to identify a number of errors in respect of theNovember 2015 payments and the Eftpos payments. Alternatively, ifthe Tribunal did identify those errors, it did nothing to remedy them.[48] The first point would be properly considered, as I have above, as a ground ofappeal. A failure to consider a submission is not a relevant matter for purposes ofjudicial review.[49] I have already found that there is no serious argument that INZ or the Tribunalapplied the incorrect standard of proof. Given that, there can be no serious argumentor important point of principle flowing from a failure to explicitly consider asubmission to that effect, even if there were such a failure.[50] Considering the Tribunal's extensive reasoning as to why INZ was entitled tonot be satisfied by Mr Duong's explanation for the March 2015 payments, and wastherefore correct in rejecting his application, I do not think it seriously arguable thatthe Tribunal failed to consider the appropriate standard of proof, or whether that hadbeen applied by INZ.[51] In respect of Mr Duong's second argument, those errors he claims the Tribunalfailed to identify in respect of the November 2015 payments and the Eftpos paymentsare:(a) The Tribunal did not identify that the conclusion of INZ concerning theEftpos payments was unreasonable, as it was made on the basis thatMr Duong appeared to shop at Pak n Save.(b) The Tribunal did not identify that INZ was mistaken in finding that$3,000 of the November 2015 transaction was unaccounted for.(c) The Tribunal identified, but did not remedy, the mistaken finding byINZ that Mr Duong's employer had sufficient funds to pay theWilson Hellaby account.[52] Mr Duong's second argument is in effect the same as his argument for seekingleave to appeal. The Tribunal did not expressly make any finding as to the errors byINZ on which Mr Duong relies. But that is irrelevant because the Tribunal did"remedy" them in the sense that the Tribunal held that Mr Duong would be given thebenefit of the doubt for the Eftpos payments and, in respect of the November 2015payments, it did not need to resolve the issues surrounding those payments as it heldthe application was in any event declined correctly on other grounds, namely theconcerns surrounding the March 2015 payments. Therefore, if those matters referredto by Mr Duong are errors, they were in any event "remedied" by the Tribunal'sultimate determination.[53] Therefore, even if the Tribunal should have expressly considered the "relevantmatters" raised by Mr Duong, a failure to do so cannot be said to be seriously arguableor of sufficient importance to justify referral to the High Court for review.Did the Tribunal consider irrelevant matters?[54] Under the second ground for seeking leave to review the Tribunal's decision,Mr Kim raises just one point. He argues that the Tribunal took into account anirrelevant matter, being whether the November 2015 payments were correctly declaredby Mr Duong's employer as taxable income. Mr Kim points out that this was notconsidered by INZ and was raised for the first time by the Tribunal.[55] While I accept that the Tribunal's taking into account something which INZhas not considered does constitute taking into account an irrelevant matter, I do notconsider that the test for leave is met.[56] Again, bearing in mind that the Tribunal ultimately determined that INZcorrectly declined Mr Duong's application on the basis of the March 2015 payments,an issue regarding the November 2015 payments cannot be said to be of sufficientimportance to justify granting leave to review. Any error of the Tribunal in consideringthe November 2015 payments cannot have had any effect on the ultimate outcome ofMr Duong's appeal.Did the Tribunal act ultra vires under s 188 of the Act?[57] Mr Duong's third ground for seeking leave to review the Tribunal's decision isa repeat of his final ground for seeking leave to appeal, namely that the Tribunalexceeded its appellate jurisdiction under s 188 of the Act by substituting its ownassessment for that of the decision of INZ in declining Mr Duong's appeal.[58] While I accept that this point is more appropriately dealt with as a ground forjudicial review, for the same reasons set out above at paragraphs [38] to [43], dealingwith the same argument on the application for leave to appeal, this ground also fails.The question is not capable of bona fide or serious argument and does not give rise toa question of general or public importance.Conclusion on application for leave to review the Tribunal's residence decision[59] I cannot identify any grounds which would merit leave being granted forjudicial review of the Tribunal's residence decision.Application for judicial review of INZ work visa decisionBackground[60] On or about 20 March 2018, following the decision of INZ not to grant him aresidence visa, but prior to his appeal to the Tribunal being determined, Mr Duongapplied for a work visa under the essential skills category. His application was basedon an offer of employment from Fresh & Save.[61] The immigration officer assigned by INZ considered the application andsupporting information. She also considered Mr Duong's bank statements, which hadbeen provided in the course of his previous application for a residence class visa.[62] INZ notified Mr Duong on 8 May 2018 that the same transactions identified inthe course of his residence visa application gave rise to concerns that his employmentat Fresh & Save was not genuine.[63] On 16 May 2018, Mr Duong's solicitor wrote to INZ, responding to theconcerns surrounding Mr Duong's employment. The letter explained each of therelevant transactions on the same basis as they had been explained in the course of theresidence application, except:(a) In respect of the March 2015 payments (alleged to be for the sale andpurchase of equipment), the solicitor provided a tax invoice apparentlydated 14 March 2015, and a letter from a truck driver who claimed tohave helped deliver the equipment to Mr Duong's home.(b) A different account was provided of the circumstances leading to theNovember 2015 payments. Previously, Mr Duong's former agent hadsaid that the matter had been discussed between Mr Duong and hisemployer, before Mr Duong had transferred the money. The solicitoroffered a different account, stating that Mr Duong had been unable todiscuss the matter with his employer and had decided to transfer thefunds.(c) A letter was attached from Mr Duong's employer, dated 8 November2017, stating that no money was received from Mr Duong in exchangefor his employment.[64] On 21 May 2018, INZ responded. In respect of the March 2015 payments,INZ noted that evidence had been put forward, but INZ was still not satisfied that thisevidence mitigated their concerns. Erroneously, INZ said that Mr Duong had still notprovided any invoices or evidence to substantiate his claim of purchasing theequipment from his employer. In respect of the Eftpos payments, INZ stated thatMr Duong had not provided any invoices to substantiate his claim that thesetransactions were for the purpose of purchasing groceries. Similarly, in respect of theNovember 2015 payments, INZ stated that Mr Duong had not provided any evidenceto substantiate his claim that the money was a loan to his employer. INZ asked forfurther information.[65] Mr Duong's solicitor responded on 29 May 2018. The solicitor noted that atax invoice had been provided by Mr Duong in respect of the March 2015 payments,and that the only reason this had not been provided earlier, with the residenceapplication, was that the employer's accountant was unable to retrieve it from thearchives. Additionally, the solicitor argued that the previous agent's statement to theeffect that Mr Duong had purchased the equipment from his employer prior to thedates in the lease documents was clearly in error. The solicitor also argued that itwould be unreasonable to expect Mr Duong to keep invoices of his purchase ofgroceries from his employer. The solicitor also stated that he had been mistaken in hisprevious letter and that Mr Duong had not spoken with his employer before makingthe November 2015 payments.[66] On 31 May 2018, INZ declined Mr Duong's work visa application, providingthe following reasons:(a) In respect of the March 2015 payments, INZ acknowledged the invoiceand delivery driver's letter, but stated these were insufficient to mitigateits concerns. The evidence was not credible and was insufficient toshow that Mr Duong had purchased equipment from his employer.INZ noted Mr Duong's claim that his former agent had made a mistakewhen providing evidence on the date of the purchase of the equipment.It also stated that concerns remain as to why the employer's accountanthad such difficulty in retrieving an invoice from 2015, such that it wasnot provided earlier.(b) In respect of the Eftpos payments, INZ noted that it may not be possibleto provide invoices to substantiate Mr Duong's claims. However, in theabsence of other evidence, and while concerns about the largerpayments remain, INZ could not be satisfied that the concernsregarding those Eftpos payments had been mitigated.(c) In respect of the November 2015 payments, no further information orevidence had been provided to substantiate Mr Duong's claim that hewas reimbursed by the employer, and that the evidence was insufficientto substantiate his claim that the purpose of his payment was to pay theemployer's debt.The application itself[67] In his application for review, Mr Duong raises four grounds of judicial review,in relation to the decision of INZ to decline his work visa application. These are:(a) Error of law by applying the incorrect standard of proof;(b) Mistake of fact (flawed factual reasoning);(c) Failure to consider relevant information; and(d) Unreasonableness.First ground – error of law by applying the incorrect standard of proof[68] Mr Kim argues that INZ erred by applying an incorrect standard of proof,above that required by law, when determining whether his offer of employment wasgenuine. In particular he argues that:(a) In dealing with the March 2015 payments, INZ isolated each piece ofevidence and concluded no single piece of evidence sufficientlysupported his claim.(b) In dealing with the Eftpos payments, INZ refused to consider thecircumstances of the payments, being that they were made by Eftpos,were small sums, were ranging in amount, and that Mr Duong had madesimilar purchases before he began his employment.(c) That when considering the November 2015 payments, INZ did notindicate whether it considered the employer's letter, which stated thatMr Duong had not paid any money in order to secure employment.[69] He submits that the approach INZ should have adopted was to assess whetheron the balance of probabilities, the strength of the evidence suggested it was morelikely than not that the transactions were genuine.[70] I am in agreement with the respondent that Mr Duong's argument seems to bethat INZ cannot have applied the correct standard of proof, as had they done so, theywould have found for Mr Duong.[71] There is nothing in the reasoning of INZ that suggests to me that they haveadopted a standard of proof higher than the balance of probabilities.[72] I agree with the respondent that it is clear that INZ considered that thepayments from Mr Duong to his employer provided prima facie evidence thatMr Duong had paid for his employment. Moreover, based on the assessment by INZof the credibility, reliability and weighting of that evidence, matters which are entirelyin their domain, they considered that the evidence provided by Mr Duong wasinsufficient to mitigate against those concerns.[73] In terms of whether INZ considered the employer's letter, the decision recordsthat INZ had read and considered Mr Duong's response. INZ was not required toindividually refer to each piece of information. In any event, what was said in thatdecision in connection with the November 2015 payments was correct. No furtherevidence had been provided to substantiate the claim that Mr Duong's payment wasto satisfy the employer's debt and that he had subsequently been reimbursed. Theemployer's letter did not constitute such evidence.[74] I therefore consider that Mr Duong has failed to make out that the decision ofINZ, declining his application for a temporary working visa, was made under error oflaw.Second ground – mistake of fact (flawed factual reasoning)[75] Although referred to in the application, this argument was not included insubmissions for Mr Duong. In any event, I consider it can be dealt with shortly.Mr Duong argues that in respect of the March 2015 payments, INZ did not properlyconsider the explanation that Mr Duong's former agent had made a mistake whenproviding an explanation surrounding the dates of purchase of the equipment.[76] I do not consider that INZ has made a mistake of fact. In its decision, INZ didaver to the explanation that the former agent of Mr Duong had made a mistake whensetting out the dates for the leasing of the new equipment by the employer. Theassessment of the weight to be placed on that explanation was a matter for INZ. Theexplanation provided by Mr Duong's solicitor was not supported by a statement fromthe former agent that it was a mistake.[77] I therefore consider that Mr Duong has failed to make out that the decision ofINZ, declining his application for a temporary working visa, was made on the basis ofa mistake of fact.Third ground – failure to consider relevant information[78] Mr Duong contends that the finding by INZ that the information supplied toexplain the transaction sets was insufficient, constituted a failure to consider allrelevant information. In particular, Mr Duong argues that:(a) INZ dismissed the tax invoice and delivery driver's letter withoutreasons and without having made verification attempts.(b) INZ dismissed the circumstances surrounding the Eftpos payments,despite acknowledging receipts could not be provided.(c) INZ incorrectly claimed Mr Duong provided no further information orevidence in relation to the November 2015 payments, when in factMr Duong had provided a letter from his employer stating no paymentshad been made for the purposes of securing employment.(d) Together, these amount to a failure to meet the standards of fairness andnatural justice.[79] As to (a), this is not a failure to consider relevant information. INZ did considerthe invoice and delivery driver's letter. Clearly, based on the reasoning in the decisionto decline, INZ was not satisfied by the invoice as concerns existed as to why it hadbeen so difficult for the accountant to find and provide the invoice earlier. While anexplanation had been provided, INZ was entitled to assess the strength and credibilityof that explanation, which is what it in fact did.[80] I also do not consider that INZ failed to consider relevant information bydeciding not to verify the delivery driver's account with him. INZ averred to thedelivery driver's letter in its decision to decline, stating that it was not sufficient tomitigate concerns. I do not consider that INZ was obliged to go any further than thatletter to satisfy themselves of its veracity.16 It follows that I do not consider contactingthe delivery driver in person to have been relevant to the decision-making processof INZ.[81] In relation to (b), I do not accept that INZ ignored the circumstancessurrounding the Eftpos payments. The assessment by INZ of Mr Duong's explanationfor those payments took account of the fact that it would have been difficult, if notimpossible, for him to provide invoices. Fundamentally, the decision of INZ wasclearly impacted by the assessment of his overall credibility, which in light of concernssurrounding the other two sets of transactions, was diminished in the view of INZ.[82] In relation to (c), Mr Kim says INZ "incorrectly claimed" that no furtherinformation or evidence had been provided by Mr Duong in relation to theNovember 2015 transactions, when in fact a letter from Mr Duong's employer hadbeen provided to INZ stating that Mr Duong had not paid for his offer of employment.[83] This point is unfairly made. INZ did not claim that no further evidence hadbeen provided "in relation to the November 2015 transactions". INZ said, as I havealready noted, that no further evidence had been provided to substantiate Mr Duong'sclaims that the purpose for his payment was to pay the employer's debt and that hewas subsequently reimbursed. That statement is correct. The letter provided byMr Duong's employer does not constitute such evidence.16 Immigration Act 2009, s 58(2)(a) and (b).[84] In relation to (d), Mr Kim says that INZ failed to consider the informationbefore it and that this amounts to a failure to meet the standards of fairness and naturaljustice. As I have found that INZ did consider the information before it that wasrelevant, it follows that there was no failure to meet the standards of fairness andnatural justice on such a basis.[85] I therefore consider that Mr Duong has failed to make out that the decision ofINZ, declining his application for a temporary working visa, was made as a result offailing to consider relevant information.Fourth ground – unreasonableness[86] Mr Duong's final ground for reviewing the decision of INZ is that the decisionwas reached unfairly on the basis of the foregoing, and is therefore unreasonable inWednesbury terms.17 In particular, Mr Duong argues that:(a) The decision to decline was based upon conclusions that thetransactions were not for the purposes he claimed them to be.(b) Those conclusions were materially affected by the failure of INZ toapply the correct standard of proof and consider all relevantinformation.(c) The conclusions were therefore unlawful.(d) The result was an unreasoned decision that was unreasonable.[87] On the basis of the foregoing, I am in agreement with the respondent that thedecision of INZ to decline Mr Duong a work visa was reasonable in Wednesburyterms. I do not consider that the conclusions of INZ were reached on the basis of theincorrect standard of proof and therefore resulted in a decision that was either unlawfulor improperly reasoned.17 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230;WK v Refugee and Protection Officer [2018] NZCA 258 at [51].[88] I therefore consider that Mr Duong has failed to make out that the decisionof INZ, declining his application for a temporary working visa, was unreasonablein Wednesbury terms.Conclusion on application to review INZ work visa decision[89] None of the four grounds advanced by Mr Duong, for review of the decisionof INZ to decline his temporary work visa application, have been made out.Result[90] Mr Duong's application for leave to appeal the decision of the Tribunal,confirming the decision of INZ declining his application for a residence visa, isdismissed.[91] Mr Duong's application for leave to judicially review the same decision of theTribunal is also dismissed.[92] Mr Duong's application for judicial review of the INZ decision, declining hisapplication for a temporary work visa, is also dismissed.[93] The respondent sought 2B costs and disbursements in the event it wassuccessful. I consider that to be appropriate and order that 2B costs be paid byMr Duong to the respondent. Counsel are expected to resolve this betweenthemselves. If not, the respondent can file submissions within 20 working days of thisdecision, with Mr Duong to file a response within 10 working days after.--------------------------------------------Hinton J