CHATHA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2018] NZHC 1044

CHATHA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT[2018] NZHC 1044 [14 May 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2017-419-000261[2018] NZHC 1044UNDER the Judicial Review Procedure Act 2016 andImmigration Act 2009IN THE MATTER of a decision under the Immigration Act2009BETWEEN GURMINDER SINGH CHATHAPlaintiffAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 27 March 2018Appearances: S Bhardwaj for the PlaintiffN Copeland for the RespondentJudgment: 14 May 2018JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 14 May 2018 at 12:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Bridge Law, Hamilton EastMeredith Connell (Office of the Crown Solicitor), AucklandIntroduction[1] Gurminder Singh Chatha first entered New Zealand on 1 October 2013. Hehas remained in New Zealand on various visas since that date. On 23 March 2017, heapplied for a work visa. It was declined on 8 August 2017. Mr Chatha now challengesthat decision by way of judicial review.Application for work visa[2] On 23 March 2017, Immigration New Zealand (INZ) received an applicationfor a work visa (post-study employer assisted) from Mr Chatha. It was based on anoffer of employment as an assistant manager for Lal Badshahji Contracting Limited.[3] On 31 May 2017, INZ wrote to Mr Chatha's immigration advisor outlining itsconcerns with the application. INZ was not satisfied that Mr Chatha's qualificationobtained in New Zealand was relevant to the position offered or that it was a key factorin his employment.1 INZ was also concerned that Lal Badshahji Contracting Limitedhad previously been in breach of New Zealand employment law.[4] On or about 9 June 2017, Mr Chatha's immigration advisor wrote to INZresponding to the concerns that had been raised in its letter of 31 May 2017.Mr Chatha's immigration advisor explained that Mr Chatha had been offered a newrole as practice manager for Cheema Limited (the company) due to his experience inthe kiwifruit industry and his local business qualification. Mr Chatha's immigrationadvisor attached a new employment agreement, a job description, an employer'ssupplementary form and a company flow chart.[5] On 15 June 2017, INZ wrote to Mr Chatha's immigration advisor advising himof two issues which may have a negative effect on his application. First of all, INZwas currently not satisfied that Mr Chatha's offer of employment was genuine orsustainable. Secondly, INZ was currently not satisfied that Mr Chatha's qualificationwas relevant to the position offered. Mr Chatha's immigration advisor was invited toprovide further information to address INZ's concerns.1 National Diploma in Business Level 5 from the Royal Business College.[6] On 23 June 2017, INZ received a letter from Mr Chatha's immigration advisor.It explained the changing nature of the company's management. It also attached abusiness profile of the company, a letter from the company's director,Mr Jagatjeet Singh, explaining the requirement for the position offered to Mr Chatha,a company flow chart and a job description of the assistant manager currently workingfor the company.[7] On 8 August 2017, INZ wrote to Mr Chatha's immigration advisor advisinghim that Mr Chatha's visa application had been declined. INZ said that it was still notsatisfied that Mr Chatha's offer of employment was genuine or that his qualificationwas relevant to the tasks he would be undertaking on a day-to-day basis.Approach on judicial review[8] Leaving aside the issue of the delay in making a decision on Mr Chatha'sapplication, it is important to note that the burden is on Mr Chatha to show that noreasonable decision maker could have reached the views taken by INZ. This is not anappeal on the merits of the decision. An application for judicial review is concernedwith the fairness of the decision making processes and not the merits of the decisionreached unless it is one that no reasonable decision maker could have reached. Thisis an onerous standard. It reflects the fact that the court should not substitute its ownview for that of the executive arm of government and the body tasked with makingthose decisions on a daily basis, Immigration New Zealand.[9] In considering this issue it is also important to bear in mind s 58 of theImmigration Act 2009 which requires visa applicants to inform INZ of all relevantfacts. It provides:58 Obligation on applicant to inform of all relevant facts, includingchanged circumstances(1) It is the responsibility of an applicant for a visa to ensure that allinformation, evidence, and submissions that the applicant wishes tohave considered in support of the application are provided when theapplication is made.(2) The Minister or immigration officer considering the application—(a) is not obliged to seek any further information, evidence, orsubmissions; and(b) may determine the application on the basis of the information,evidence, and submissions provided.(3) It is also the responsibility of an applicant for a visa to inform theMinister or an immigration officer of any relevant fact, including anymaterial change in circumstances that occurs after the application ismade, if that fact or change in circumstances—(a) may affect the decision on the application; or(b) may affect a decision to grant entry permission in reliance onthe visa for which the application is made.(4) Without limiting the scope of the expression material change incircumstances in subsection (3), such a change may relate to theapplicant or another person included in the application, and may relateto any matter relevant to this Act or immigration instructions.Discussion[10] In its letter dated 8 August 2017 declining Mr Chatha's visa application, INZreferred on three occasions to the lack of evidence from Mr Chatha. The lack ofevidence was said to relate to:(a) The sustainability and full time nature of the director,Mr Jagatjeet Singh's IT business.(b) The inability of the assistant manager, Mr Gagandeep Singh, toundertake the tasks outlined in his job description.(c) The necessity for Mr Chatha to undertake the tasks of liaising withorchard owners, manage timesheets, set rosters, manage orchardoperations, manage records, train staff and attend meetings on a day-to-day basis.[11] As an example of the lack of evidence identified by INZ prior to its decisionof 8 August 2017, it had been provided with a company flowchart and job descriptionsfor both Mr Chatha and the assistant manager, Mr Gagandeep Singh. The company'sflowchart clearly listed four company executives as follows:(a) Director – Jagatjeet Singh(b) Practice Manager (Orchard) – (vacant)offered to Gurminder Singh Chatha(c) Assistant Manager – Gagandeep Singh(d) Supervisor – Ravinderpal SinghIt then listed 10 kiwifruit orchard workers.[12] Mr Chatha's job description included the following:(a) Manage the staff recruitment and training.(b) Manage the allocation of staff and supply of labour to the orchard andpackhouse as required.(c) Manage timesheets/rosters/payroll details from Supervisor.[13] Mr Gagandeep Singh's job description contained similar responsibilities:(a) Assist the managing director in conducting personal interviews for staffhiring, undertaking responsibility of training for the short skill staff andmanaging the staff rosters.(b) Assign work to the staff and look after their wellbeing and personal careneeds.(c) Organise time sheets of work carried out, and getting time sheets to themanaging director on time.[14] INZ then clearly put Mr Chatha on notice when it wrote to his immigrationadvisor on 15 June 2017:We are currently not satisfied that your offer of employment is genuine as wehave noted that the business currently has an Assistant Manager and an Officeand Field Manager who are undertaking tasks which are included in your jobdescription.We are also not satisfied that with a work force of only 13 people that thebusiness requires three management positions in addition to a companydirector. We are not satisfied that there will be enough business andadministrative work available to sustain your position.[15] In response INZ received two letters, both dated 22 June 2017. One was fromMr Chatha's immigration advisor and the other from the director, Mr Jagatjeet Singh.Both letters referred to the director, Mr Jagatjeet Singh, devoting more time to an ITbusiness and therefore requiring the services of Mr Chatha as a practice manager(orchard). As to the assistant manager's position, Mr Jagatjeet Singh said only that hewas not very experienced in handling workers, "even though he's quite skilled, but hisset of skills are different to what I had been looking for." No mention was made ofthe overlap of responsibilities between Mr Chatha and Mr Gagandeep Singh, nor wasthere any suggestion that Mr Gagandeep Singh's job description had been changed inany way.[16] Subsequent to INZ's decision to decline Mr Chatha's visa application,Mr Jagatjeet Singh, swore an affidavit dated 17 November 2017 in support ofMr Chatha's application for review in which he states:The Assistant Manager who was in employment with the Company was notfit to work on actual orchard sites as he had no such experience, and was notwilling to take up extra responsibilities, and that this could've also created alot of stress for him.It is still unclear whether Mr Gagandeep Singh is employed by the company andexactly what his responsibilities are.[17] Furthermore, at no time did Mr Chatha's immigration advisor orMr Jagatjeet Singh tell INZ that the supervisor, Mr Ravinderpal Singh, was about toleave the company. Yet in Mr Jagatjeet Singh's affidavit dated 17 November 2017 insupport of Mr Chatha's application for review, Mr Singh states:It was incorrect for the INZ to assume that there were three managerialpositions for the Company. I was nearly gone and that our supervisor referredto by INZ, also left for another company in August 2017. In April 2017 hegave notice of termination to us.[18] INZ, however, was not advised the supervisor had given his notice to thecompany. In its letter of 15 June 2017, INZ had made it quite plain that they were notsatisfied that with a workforce of only 13 people, the business required threemanagerial positions in addition to the director, Mr Jagatjeet Singh. It would havebeen a simple matter for Mr Chatha to advise INZ of the imminent departure of thesupervisor, Mr Ravinderpal Singh, if indeed he had given notice of termination inApril 2017. INZ therefore assumed that Mr Ravinderpal Singh was still employed ina managerial position by the company. INZ cannot be expected to know something itwas not told. That is the reason for the legislative provision in the Immigration Actimposing the burden on applicants to provide whatever material they wish in supportof their application. It is not for INZ to make its own enquiries independently of theinformation provided by an applicant.[19] The statement of claim lists eight grounds of review, although only seven werepursued in Mr Chatha's written submissions. These are as follows:Lack of valid reasons[20] Mr Chatha says that INZ failed to give valid reasons for declining hisapplication for a work visa as required under s 27 of the Immigration Act. No validreasons were given as to why the employment offer was not genuine and sustainable.Further, no proper reasons were given as to why the position offered was not relevantto Mr Chatha's qualifications.[21] The letter from INZ dated 8 August 2017 declining Mr Chatha's applicationfor a work visa was two pages in length. As to the genuineness and sustainability of ajob offer, it gave the following reasons:(a) The business only had 13 staff members and already had a director,assistant manager and supervisor. INZ said that it was still not satisfiedthat the business required another management position.(b) The business had been operating since September 2016 without apractice manager, which was the role envisaged for Mr Chatha. Whileit referred to advice that the company's director was taking a step backfrom the business to concentrate on another IT business. INZ thennoted that Mr Chatha had provided no evidence to show that thedirector was working full time in the IT business, or that it needed hissole attention.(c) INZ recorded Mr Chatha's advice that the assistant manager was notexperienced in handling workers, but again noted that Mr Chatha hadprovided no evidence to show that he was unable to undertake the tasksoutlined in his job description.[22] As to the relevance of Mr Chatha's qualifications to the proposed job, INZnoted that with three executives and only 10 staff under them, it was unlikely that themajority of Mr Chatha's time would be spent on administrative tasks, as the businessalready had an assistant manager whose roles were very similar to Mr Chatha's andincluded organising time sheets, training staff, reporting to the director and assistingin managing paper work and records.[23] INZ's letter clearly contained reasons. Mr Chatha's complaint appears to bethat those reasons were not valid or proper. This is, however, a challenge to the meritsof the decision and is not permissible in an application for review unless there are, ineffect, no reasons given or the decision is one that no reasonable decision maker couldhave reached. In any event, I am of the view that the reasons given by INZ were validand available having regard to the information provided to it. The fact that theinformation provided to INZ was incomplete cannot be visited upon INZ when s 58imposed an obligation on Mr Chatha to inform INZ of all relevant facts, includingchanged circumstances.Unreasonably high standard of proof[24] Mr Chatha says that INZ asked him to prove matters to an unreasonably highstandard of proof when he had not even commenced his employment as the company'spractice manager. In the circumstances, he says it was unreasonable for INZ to expecthim or his employer to provide proof of something happening in the future. A writtenassertion from the employer as to the tasks that Mr Chatha would undertake on a day-to-day basis should have sufficed.[25] I am of the view that INZ did not require Mr Chatha to prove matters to anunreasonably high standard of proof. INZ did not dismiss Mr Chatha's job descriptionas irrelevant to the tasks that he would undertake on a day-to-day basis. It noted,however, that many of those tasks were mirrored in the job description of the assistantmanager, Mr Gagandeep Singh, and in its letter to Mr Chatha's immigration advisordated 15 June 2017 clearly asked for an explanation. It was not an unreasonably highstandard of proof to expect Mr Chatha to explain, for instance, how and in what wayMr Gagandeep Singh's job description had changed.Failure to cite prejudicial information properly[26] Mr Chatha says that in compliance with the rules of natural justice, INZ wasrequired to properly put prejudicial information to him. On the first page of its letterdated 15 June 2017, INZ advised him that it was currently not satisfied that his offerof employment was genuine or sustainable. However, in declining his application fora work visa, INZ expected Mr Chatha to show the employment was both genuine andsustainable.[27] Immigration instruction W2.10.10 provides that all offers of employment mustbe genuine and sustainable. In some cases INZ may be satisfied that an offer ofemployment is genuine, but not sustainable or vice versa. There are two requirementsthat both need to be satisfied – genuineness and sustainability.[28] I am of the view that INZ's letter dated 15 June 2017 did not cite prejudicialinformation improperly or mislead Mr Chatha in any way. At the outset, INZ statedthat they were not currently satisfied that Mr Chatha's offer of employment wasgenuine or sustainable. The letter then went on to provide reasons why the job offerwas thought not to be genuine or sustainable. The INZ letter clearly invited commentin response as to why the job offer was both genuine and sustainable.Factual error[29] Mr Chatha says that it was an error of fact on the part of INZ to find that therewere three managerial positions in the business. The director was not available at allto the company because of his commitment to establishing a separate IT business.[30] As already noted, INZ's letter of 15 June 2017 clearly stated that INZ was notsatisfied that, with a workforce of only 13 people, the company required threemanagerial positions in addition to a company director. Mr Chatha was invited tocomment and asked to provide specific information including job descriptions for allother managerial positions within the company.[31] In response, Mr Chatha's immigration advisor forwarded a letter dated 22 June2017 from Mr Jagatjeet Singh, who explained why the company required a practisemanager, largely on the basis that he had to devote time to a new IT business.Mr Jagatjeet Singh did not, however, give any further information regarding howmuch of his time was spent on the IT business and/or the company and why, despiteonly having a workforce of 13 people, three managerial positions were still required(excluding his position as a director). In particular, he failed to advise INZ that theassistant manager's role had changed and that the supervisor had given his notice toquit. If he had, INZ may have viewed Mr Chatha's application in a different light.[32] It may be an error of fact that there were three managerial positions in thecompany, but it is not however an error of fact for which INZ can be held accountablegiven the obligation on Mr Chatha, in terms of s 58 of the Immigration Act, to adviseINZ of changed circumstances.Relevance of qualification to employment duties[33] Mr Chatha says that no reasons were given by INZ as to which of hisemployment duties were not relevant to his qualifications.[34] In its letter dated 8 August 2017 declining Mr Chatha's application, INZ stated:We also note that your advisor has stated that your qualification is relevant asyou will liaise with orchard owners, manage timesheets, set rosters, manageorchard operation, manage records, train staff and attend meetings. Whileyour advisor has stated that you undertake these tasks they have provided noevidence to show that you will do these roles on a day to day basis.[35] I am of the view that this comment reflects the fact that INZ was unsure ofwhat tasks Mr Chatha would undertake for the company given that the identified taskswere already included in the job description of the assistant manager,Mr Gagandeep Singh. If Mr Gagandeep Singh was undertaking the identified taskson a day-to-day basis then INZ could not be satisfied that Mr Chatha's qualificationswere relevant to the day-to-day work he undertook, whatever they may be. There isno error on the part of INZ.Due weight not given to evidence[36] Mr Chatha says that, given that the director, Mr Jagatjeet Singh, had recentlyset up another IT business, there was now a clear need for a practice manager, eventhough there had been no need in the beginning for extra managerial assistance. Hetherefore says that the fact that the employer was not available and that anothermanager needed to be recruited was not given sufficient weight. INZ proceeded tomake a decision in a predetermined fashion.[37] In as much as this ground of review refers to insufficient weight being givento evidence that the director, Mr Jagatjeet Singh, was unavailable to attend to thecompany's business, it again challenges the merits of the decision and, unless it was adecision that no reasonable decision maker could have reached, judicial review is notavailable. As already noted, I am of the view that Mr Chatha was clearly put on noticethat further information was required to satisfy INZ of the genuineness and stabilityof the job offer. The fact that INZ may have proceeded on incomplete informationcannot be visited upon INZ.[38] I am also of the view that INZ gave due consideration to all the informationprovided in support of Mr Chatha's application and there is no basis to find that INZ'sweighting of factors was so out of kilter that the decision was unreasonable. There isalso no evidence whatsoever that the decision was predetermined. Applicants need toprovide the information to satisfy INZ that their application meets the relevant criteria.Inordinate delay in making a decision[39] Mr Chatha says that he applied for a work visa on 23 March 2017 and INZtook four months and 17 days to make a decision on what was a relativelystraightforward application. The decision was delivered to Mr Chatha at a time whenhe no longer had the right to seek reconsideration of the decision under s 185 of theImmigration Act because his interim visa had expired. This left him with no otheroption but to seek a judicial review from the High Court.[40] Although Mr Chatha first applied for a work visa on 23 March 2017, I am ofthe view that the relevant date for the purpose of considering the time taken for adecision is 9 June 2017. This is the date of the letter from Mr Chatha's immigrationadvisor advising INZ that Mr Chatha had now been offered a position with CheemaLimited after INZ had raised concerns about the job offer from Lal BadshahjiContracting Limited. In effect, this was a new application. INZ then replied less thana week later, on 15 June 2017, requesting further information from Mr Chatha.Mr Chatha's immigration advisor then replied just over a week later, on 23 June 2017.[41] INZ then took six weeks to make its decision on Mr Chatha's applicationsending its letter of declinature to Mr Chatha's immigration advisor on 8 August 2017.I am of the view that this is not an inordinate delay.[42] INZ states on its website that most work visa applications are processed in25 working days, but may take longer to process if they request more information fromthe applicant. In the present case, INZ took 32 working days to decide Mr Chatha'sapplication after receiving the information requested from him on 23 June 2017.[43] INZ also granted Mr Chatha an interim visa while it was assessing his workvisa application. Mr Chatha complains, however, that because the INZ decision wasnot made during the currency of his existing visa, he was denied the right to seekreconsideration of the decision under s 185 of the Immigration Act. This does notprovide Mr Chatha with any substantive rights, except perhaps under the principles oflegitimate expectation in that the duty to make a decision within a reasonable time hasbeen held to be a general principle of administrative law.2 I am, however, of the viewthat the delay beyond the 25 working days guidance is not significant.2 Awan v Minister of Immigration [2000] NZAR 655 (HC).Result[44] Mr Chatha's application for review is dismissed. The INZ decision of 8 August2017 was available to it on the incomplete evidence that Mr Chatha had provided.Costs are payable by Mr Chatha to INZ on a 2B basis._________________________Woolford J