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

ZHANG v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2020] NZHC 2495 [23 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-001206[2020] NZHC 2495UNDER Sections 245 of the Immigration Act 2009IN THE MATTER of application for leave to appeal to the HighCourt against a determination of theImmigration and Protection TribunalBETWEEN JIA ZHANGApplicantAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondent.../intituling cont overHearing: 23 September 2020Counsel: RE Harrison QC for ApplicantCP Paterson for RespondentJudgment: 23 September 2020LEAVE JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 23 September 2020 at 4 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.Mark Lee Lawyers, Auckland.RE Harrison QC, Auckland.CIV-2020-404-001207UNDER Section 249 of the Immigration Act 2009IN THE MATTER of an application to the High Court forleave to bring judicial review proceedingsBETWEEN JIA ZHANGApplicantAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTFirst RespondentIMMIGRATION AND PROTECTIONTRIBUNALSecond Respondent[1] Jia Zhang was declined residence under the entrepreneur category. He seekspermission to appeal and bring judicial review. Most of the proposed argumentsconcern 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 tothese 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 theproposed arguments involve a question of law.1 However, Ms Paterson contended nomatter of general or public importance arises. I disagree. This category of residencyis 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" meansin the context of self-employment, this being a prerequisite for residency under theentrepreneur category.[4] The remaining arguments are related process points in the judicial reviewclaim. The claim extends to Immigration New Zealand's approach to what constitutesself-employment, and its alleged failure to warn Mr Zhang of the need to keep timerecords to satisfy this requirement.[5] I was sceptical whether this added anything to the proposed appeal; andinclined to restrict permission to it. However, Mr Harrison said the Immigration andProtection Tribunal declined to receive fresh evidence from Mr Zhang and unlessjudicial review were permitted (with the breadth of associated remedies), Mr Zhangmay be forced to confront the same difficulty, in turn impairing the likelihood ofappellate success. Ms Paterson very fairly acknowledged as much.[6] This led to argument about whether s 247 or s 249 of the Immigration Act 2009governed the proposed judicial review. I consider the latter applies, but nothing turns1 Immigration Act 2009, s 245.on this as I am satisfied permission should be granted, essentially for the same reasonsas the proposed appeal.[7] So, I grant permission for the proposed appeal and judicial review claim—eachas pleaded. I state the obvious: beyond each being arguable, the grant of permissionsays nothing about likelihood of success.[8] I anticipate the appeal and judicial review claim will be heard together.2 I placeboth in the judicial review list on Friday, 9 October 2020 for directions facilitating ajoint hearing.[9] Mr Harrison sought costs. Ms Paterson, not unreasonably, asked for time torespond. I fix this timetable and impose a seven-page limit on the length of each costsubmission:(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 J2 Immigration Act, s 249A.