JIANMING HE V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2008-485-1300

JIANMING HE V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2008-485- 1300 13 November 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-1300 CIV 2008-485-1845 CIV 2008-485-1879IN THE MATTER OF appeals pursuant to section 115 of the Immigration Act 1987 AND IN THE MATTER OF appeals against decisions of the Residence Review Board BETWEEN JIANMING HE Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent AND JINBO LIANG Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent AND WENHAI LIANG Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 5 November 2008 Counsel: R E Harrison QC for Appellants P McCarthy for Respondent Judgment: 13 November 2008JUDGMENT OF RONALD YOUNG J[1] The three appellants have all unsuccessfully sought permanent residence in New Zealand under the Skilled Migrant Category. These appeals all raise the same issues with respect to the interpretation of Government residence policy relating to the Skilled Migrant Category for those who seek permanent residence in New Zealand and the approach of the Residence Review Board (RRB") to s 18C(1)(b) of the Immigration Act 1987 and special circumstances.Factual Background[2] Although this appeal concerns questions of interpretation some understanding of each appellant's circumstances is appropriate.Jianming He[3] Jianming He is 44 years of age, married with a child aged 10 years. He entered New Zealand in August 2004 from China on a work visa and has worked since as a chef at various Chinese restaurants. It is common ground that Mr He's work places him in the Skilled Migrant Category and his circumstances gave him sufficient points to qualify for an invitation by Immigration New Zealand ("INZ") to apply for permanent residence. In September 2007 Mr He applied for permanent residence. INZ doubted whether he met, what they viewed, as the minimum English standard requirements and on that basis his application was declined. [4] On appeal the RRB confirmed the decision of INZ and found there were no special circumstances in Mr He's case, such that an exception to the Government residence policy should be considered (s 18C(1)(b), Immigration Act).Jinbo Liang[5] Jinbo Liang is a Chinese citizen also aged in his mid 40s with a wife, a teenage child and an infant child (born in New Zealand). The family live together in New Zealand. Mr Liang has been and is a currently a chef at a Chinese restaurant. He arrived in New Zealand in June 2004 and has been working since that time as achef. He currently has a work permit, which is due to expire in September 2009. As with Mr He, Mr Liang was invited to apply for permanent residence under the Skilled Migrant Category. His application was refused by INZ on the basis that his English language skills did not meet the minimum standard. On appeal before the RRB this decision was confirmed and the Board found no special circumstances under s 18C.Wenhai Liang[6] Wenhai Liang (no relation of the second appellant) is in his late 30s. He is married with two children, one born in New Zealand. The family lives together in New Zealand. Mr Wenhai Liang came to New Zealand on a work permit in 2003 and that permit will not expire until 2010. He was worked as a skilled baker since his arrival in New Zealand. He was also refused residency by INZ under the Skilled Migrant Category because of his inadequate English language skills. This decision was confirmed on appeal and the Board rejected his claim that special circumstances existed.Statutory Background[7] Sections 13A and 13B of the Immigration Act empowers the Minister to publish Government policy relating to the eligibility under which permits and visas are to be granted to those who wish to come and stay in New Zealand. [8] The policy, as far as residence applications are concerned, is set out in INZ Operational Manuals. [9] As to applications for residency under the Skilled Migrant Category (as here) the objective of such a policy as identified in the INZ Operational Manual (at SM1) is said to be:SM1 Objectivea. The objective of the Skilled Migrant Category is to provide for the grant of residence to people who demonstrate that they:• have skills to fill identified needs and opportunities in New Zealand; and• are able to transfer those skills in New Zealand and link with local needs and opportunities; and• are able to demonstrate an ability to contribute to New Zealand both economically and socially; and• are able to demonstrate an ability to successfully settle in New Zealand. b. In meeting this objective the Skilled Migrant Category will maximise and accelerate the contribution of immigration to New Zealand's:• capacity building, sustainable growth and innovation;• global connectedness; and• thriving and inclusive communities through focusing on a range of source regions to achieve a balanced programme and linking global talent with local opportunities.[10] Someone who is interested in obtaining residence in the skilled migrant category is to express an interest to INZ hoping to be considered for an invitation to apply for residency. A point system is used to grade interested persons. If the interested person has sufficient points, then they are invited to apply for permanent residency as a skilled migrant. In this case each of the appellants had sufficient points and were invited to apply for permanent residency in the Skilled Migrant Category. [11] Applications for residency are then assessed against the policy in the Operational Manual. Three criteria are used: (i) health, character and English language requirements; (ii) employability and capacity building requirements; and (iii) settlement and contribution requirements. [12] The policy provides that applicants must meet a minimum standard of English.[13] The settlement and contribution requirements, which include demonstrating an ability to successfully settle and contribute to New Zealand, is met if the applicant qualifies for 60 points for current skilled employment in New Zealand for 12 months or more. Each of the applicants had 60 points or more and were, therefore, deemed to have successfully settled and contributed to New Zealand for the purpose of considering their application for permanent residence. [14] Section 5 of the Operational Manual sets out the English language requirements. [15] Where an applicant is refused residency by INZ then he or she may appeal to the RRB. Two grounds of appeal only are permitted pursuant to s 18C(1):(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or the permit was made; or (b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered.[16] Section 115 of the Act permits appeals from the Board to this Court on errors of law only.Grounds of Appeal[17] The appellant has three grounds of appeal: (i) The Immigration officers erred in concluding that the appellants had not met the minimum standard of English when the policy provided that they had met the standard. (ii) If (i) is rejected then the Immigration officers exercised their discretion to require the appellants to provide an English language certificate of competency on impermissible grounds; and (iii) The RRB in concluding there were no special circumstances, pursuant to s 18C(i)(b), made their decision on impermissible grounds.[18] Although the appeal points in (i) and (ii) above rely upon errors of law by INZ and not directly errors of law by RRB, I accept as the appellant submitted that if established these errors were also errors of the RRB when it confirmed INZ's decision and reasoning.Appeal points (i) and (ii)[19] Section SM5.5 of the Skilled Migrant Category policy provides the minimum standard of English for applicants. It is necessary to set out the standard in full:SM5.5 Minimum standard of English for principal applicantsa. Applications under the Skilled Migrant Category must be declined if the principal applicant has not met the minimum standard of English. b. Principal applicants under the Skilled Migrant Category meet the minimum standard of English if: i they provide a Test Report Form (no more than 2 years old at the time the application is lodged) from the International English Language Testing System (IELTS), showing they achieved an overall band score of at least 6.5 in the IELTS General or Academic Module; or ii they provide evidence that their recognised qualification(s):• was gained as a result of a course or courses of study in which English was the only medium of instruction; and• (if that qualification was gained in New Zealand) the qualification had a minimum completion time of at least two years or it is a post-graduate qualification and the applicant has an undergraduate qualification that qualifies for points; or iii they have current skilled employment in New Zealand for a period of at least 12 months that qualifies for points (see SM7(on page 161)); or iv they provide other evidence which satisfies a visa or immigration officer that, taking account of that evidence and all the circumstances of the application, they are a competent user of English. These circumstances may include but are not limited to:• the country in which the applicant currently resides;• the country(ies) in which the applicant has previously resided;• the duration of residence in each country;• whether the applicant speaks any language other than English;• whether members of the applicants family speak English;• whether the members of the applicants family speak any language other than English;• the nature of the applicants current or previous employment (if any) and whether that is or was likely to require skill in English language;• the nature of the applicants qualifications (if any) and whether the obtaining of those qualifications was likely to require skill in the English language. c. In any case, a visa or immigration officer may require an applicant to provide an IELTS certificate in terms of paragraph (b)(i). In such cases, the IELTS certificate will be used to determine whether the principal applicant meets the minimum standard of English.Note: Full consideration must be given to all evidence of English language ability provided before a decision to request an IELTS certificate under SM5.5(c) is made. If an IELTS certificate is requested, the reason(s) behind the decision must be clearly documented and conveyed to the applicant.[20] As can be seen SM5.5(b) provides that the minimum standard of English is met if the applicant has current skilled employment in New Zealand and has had for at least 12 months. It is common ground that each of the appellants qualify under SM5.5(b)(iii). [21] If the policy ended at SM5.5(b) then each applicant would meet the minimum English standard. However INZ and the RRB took the view that SM5.5(c) entitled INZ, despite a SM5.5(b)(ii), (iii) or (iv) qualification, to require an applicant to provide the International English Language Testing System ("IELTS") certificate in any particular case. INZ requested each appellant provide the certificate identified in SM5.5(c). [22] None of the appellants provided the SM5.5(c) certificate and as I understand the position all accept they are currently unlikely to pass. They submit, as their appeal point, that the express words SM5.5(b), especially "meet" at the introductionto SM5.5(b), make it clear that they did "meet" the English language requirement. They submit, therefore, that SM5.5(b) is not subject to SM5.5(c). [23] I reject this approach to the interpretation of SM5.5. I accept that SM5.5 is poorly worded and as a result has most unfortunately given false hope of a successful application to many. [24] Read as a whole including the objectives and the overview at the beginning of the Skilled Migrant Visa Manual and considering the detail of the Manual I am satisfied that SM5.5(c) does empower, in appropriate cases, INZ to require an applicant who has satisfied one of the SM5.5(b) categories to provide the IELTS certificate. That is, SM5.5(b) is subject to SM5.5(c). [25] This in my view is the sensible interpretation of the section and the only one by which SM5.5(c) has meaning. [26] The use of the words "In any case" in SM5.5(c) do not need to be read down. The only "cases" SM5.5(c) can apply to, are those identified in SM5.5(b). It is only if an applicant comes within SM5.5(b) and, therefore, meets the English language minimum standard that SM5.5(c) can be invoked. The qualification under SM5.5(b), therefore, must be considered provisional and subject to SM5.5(c). [27] The IELTS requirement in SM5.5(c) is essentially a backup to the SM5.5(b) provisions. The overriding purpose of English language requirements is to ensure that a minimum standard of English is met by an applicant. This is made clear in SM5.1(a), which deals with the aim and intent of the English language requirements. It provides as follows:a. Principal applicants under the Skilled Migrant Category are required to meet a minimum standard of English to enable successful settlement and skilled employment in New Zealand.[28] The backstop of SM5.5(c) is provided so that if an Immigration officer has a reasonable basis for believing that an applicant did not enter New Zealand with a minimum standard of English language and their work in New Zealand did notrequire and may not have provided a minimum level of English language then the officer can require the applicant to obtain an IELTS certificate under SM5.5(c). [29] It would be quite wrong for INZ to invariably ask those who qualify under SM5.5(b) as reaching the minimum standard of English to provide the IELTS certificate. Such a request should only be where there are good reasons to believe the experience and circumstances behind, for example the SM5.5(b)(iii) qualification will not have provided a minimum standard of English. [30] Here the facts justified, in each appellant's case, the invocation of SM5.5(c) by INZ. All the appellants were born in China. There is no suggestion that any appellant had a minimum standard of English when they began work in New Zealand. They each worked in circumstances where others present in their work place spoke Mandarin and a minimum standard of English was not required. This seems to be precisely the situation SM5.5(c) was designed for. [31] The Court of Appeal in Patel v Chief Executive of the Department of Labour[1997] NZAR 264 stressed a practical approach should be bought to the interpretation of an immigration policy document. They said:There can be little argument that the wording of the rule is unsatisfactory. Notwithstanding these difficulties, however, we believe that the rule is capable of a reasonable construction. A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country. See Alexander v Immigration Appeal Tribunal[1982] 2 All ER 766, per Lord Roskill at 770; see also R v Immigration Tribunal ex parte Shaikh [1981] 3 All ER 29, per Bingham J at 35.[32] Bringing such an approach to this document, a sensible construction using the natural meaning of the language in the context of SM5.5, satisfies me that SM5.5(b) must be subject to SM5.5(c). I am also satisfied that in the circumstances, INZ exercised its discretion to request each applicant's compliance with SM5.5 (c) on permissible grounds. The facts in this case gave reason to doubt whether theSM5.5(b)(iii) qualification was going to meet a minimum standard of English. As I have said I am satisfied that this is exactly the type of situation that the backstop of SM5.5(c) was provided for. I accept, as the appellants submitted, that the Immigration officer is likely to have known that it was improbable that the appellants could have passed the IELTS test. It does not seem to me, however, that the probability of failure was a factor they could have properly taken into account in deciding whether to make the request. [33] I, therefore, see no error of law in the way in which INZ exercised the discretion to require the IELTS certificate (Appeal points (i) and (ii)).Appeal point (iii)[34] The third ground of appeal involves a consideration of the Board's approach to special circumstances in s 18C(1)(b). The appellants criticised the Board's approach on several grounds. [35] Firstly, the appellants say, in deciding whether the Board was satisfied there were special circumstances they were not entitled to take into account any negative aspects of the appellant's circumstances. The weighing up of positive and negative factors which, the plaintiffs say each of the Boards undertook in relation to each appeal was not what was required by s 18C. [36] Secondly, the appellants say that the Board essentially found in each case, each Board using similar wording and a similar approach, that the pivotal point in concluding there were no special circumstances was because the appellants did not meet the minimum English language requirements. They submit that this approach suffered from impermissible circularity and wrongly inflated this failure to the determinative feature of special circumstances. [37] The appellants submit, therefore, where the appellant's application for permanent residence is declined on a failure to achieve the minimum English competence then an appeal based on special circumstances could never succeed. The English language inadequacy would, on the Board's approach, predeterminefailure to establish special circumstances. The appellant submitted, therefore, the appeal was reduced to a hollow exercise. [38] The appellants suggested a preferable approach to s 18C(1)(b) was, without considering any negative factors, for the RRB to assess whether there were special circumstances. If they concluded there were special circumstances, then they could properly take into account negative factors in deciding whether overall the circumstances were such that an exception to the Government residence policy should be considered. [39] Dealing with the latter point firstly, I do not think such an approach to s 18C(1)(b) is especially helpful. After all, some context is needed to assess special circumstances. The context for the identification of whether the circumstance or circumstances are special is that they must be relevant to whether an exception to the Government residence policy should be considered. Looked at in that light, the two step test suggested by the appellant seems unhelpful. [40] The respondent says that the Board's discussion of the English language requirement is part of a much wider discussion of the whole of the appellant's circumstances. They submit there was no fettering of discretion by the Board and it appropriately considered English language competence along with other personal factors in its assessment of special circumstances. [41] I am satisfied that in deciding whether there are special circumstances it is permissible for the RRB to take into account negative aspects relating to an applicant's circumstances as long as they are relevant in assessing whether an exception to Government residence policy should be considered. [42] In Rajan v Minister of Immigration [2004] NZAR 615 (CA) the Court of Appeal, in considering s 146A of the Immigration Act and a statutory reference to "special circumstances" relating to whether further time should be given to commence judicial review proceedings out of time, said at [28]:The Legislature has not limited the factors that can be taken into account in assessing whether there are special circumstances for s146A purposes Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s146A discretion should not be exercised.And further at [24] it said special circumstances are:circumstances that are uncommon, not common place, out of the ordinary, abnormal.[43] As I have said, the only limitation in s 18C(1)(b) relates to the focus of the special circumstances. I am satisfied, therefore, subject to that qualification, negative factors can be taken into account when assessing whether there are special circumstances. [44] The second point raised by the appellants relates to the RRB's approach to the minimum English language requirements and its relevance to special circumstances. [45] It is necessary when considering this submission to identify exactly what the RRB said in relation to each appellant. [46] In each case before the Board the appellants pointed to their personal family and work circumstances as establishing the special circumstances. All the appellants were highly skilled, well thought of employees working in jobs in which New Zealand has a skill shortage. All have families in New Zealand including children, some of whom were born in New Zealand and all of whom seem to have integrated well into New Zealand life. The English skills of the appellants were clearly limited although one appellant (Mr He) had completed a short education course in New Zealand, which used English as its language of instruction. [47] In Jianming He's case the Board detailed the appellant's personal circumstances, work experience, family situation, health and character. All these factors were relevant in establishing special circumstances. The Board then said:[51] The most compelling factor in the appellants favour is that he is a chef, a position that is on the LTSSL and one for which there is a recognised problem in recruitment and retention. The appellant's employer has written in support of his application emphasising his hardworking and trustworthycharacteristics. However, employment in an occupation on the LTSSL is not definitive. [52] Weighing strongly against the appellant is the fact that he failed to produce any evidence to demonstrate that he satisfied the English language requirements by virtue of his employment and/or the factors set out at paragraph SM5.5.b.iv, and further, failed to produce an IELTS test certificate when asked to do so. As a result, the Board has no ability to assess the extent to which the appellant has acquired any English language skills. No evidence is put forward about his spouse's English language ability. The board accepts however that the appellants son's school principal and syndicate leader have written expressing their pleasure at the speed with which the son has acquired some proficiency in oral English. [53] The Board also gives consideration to the provisions of paragraph SM5.1, "Aim and intent", which makes clear that the requirement that an applicant meet the minimum standard of English is there for the purpose of ensuring successful settlement and skilled employment. [54] While the appellant, as a chef, is evidently in skilled employment, there is a question about the degree to which he can be said to have successfully settled. There is no evidence about his English language ability, and further, no evidence about the attempts made by either himself or his family to integrate into New Zealand society in the three years he has been here. Successful settlement requires more than having obtained employment and accommodation; it is reasonable to anticipate that successful settlement also embodies some element of successful integration into the wider community. [55] The Board finds that the lack of the evidence about his English ability and the broader integration into the New Zealand community outweighs the appellants employment in an occupation that is on the LTSSL. His circumstances do not warrant recommendation for consideration of an exception to policy.[48] In Jinbo Liang's case the Board approached the situation in a similar way. All of the factors other than the English language factor favoured Mr Liang. In giving its decision the Board said:[52] On the basis of the evidence before it, the Board accepts that the appellant is a highly skilled and successful Chinese cuisine chef. He is strongly supported by his employer. While there is no information concerning the appellant's spouse, his daughter is succeeding in secondary school in New Zealand and intends to undertake tertiary training to become a schoolteacher. The family satisfies the medical and character requirements of policy and the appellant achieved more than the passmark for applications under the Skilled Migrant category but was unable to demonstrate more than a very elementary grasp of the English language. [53] The Board acknowledges that the appellant's occupation is on the LTSSL and he has clearly been able to work at a high level in his specialised field where his inability to speak and comprehend English in other than the most basic level has not been a disadvantage. However, the Board is notsatisfied that the appellant's potential to contribute and capacity to settle and fully integrate into New Zealand are sufficiently strong to override his ability to satisfy the minimum standard of English required in the Skilled Migrant category. The Board notes that the appellant remains in New Zealand on a work permit that does not expire until 12 September 2009. He has not submitted any evidence that he is undertaking ESOL tuition but it may be that he has time to improve his English language skills and there appears to be no impediment to his lodging a further Expression of Interest for residence once he has achieved this. [54] On balance, the Board finds the appellant's circumstances, even when considered cumulatively, are not special.[49] Finally in Wenhai Liang's case the appellant's personal factors all favourably reflected on him. As to his English competence the Board said:[55] There is no evidence on the INZ file or in the material supplied on appeal of the appellant's actual ability in the English language. Nor is there any indication that he has made any efforts to learn English by taking instruction. It appears his spouse has not yet taken such instruction as it is proposed that she should do so if the application is approved in principle. [56] The appellant has a permit to enable him to continue work until 2010 and there is nothing to prevent him from undertaking English classes to achieve a standard which might better enable him to settle successfully in this community and which might result in evidence of an acceptable standard of English. [57] Failure to achieve the minimum standard of English required by policy must be taken into account when considering his special circumstances.And then said:[63] The appellant has been working in New Zealand for four years in bakeries as a professional baker and has given satisfaction to his employers. His present employers wish him to continue working for them. [64] The appellant and his spouse have a 13-year old who has settled well in school and in New Zealand generally and 2-year-old who is a New Zealand citizen. While the family has some family nexus to New Zealand, the preponderance of the appellant's and his spouse's family continue to live in China and that is where they have spent most of their lives. [65] The appellant is able to continue working in New Zealand on temporary permits until, at least at this stage, February 2010 and therefore has the opportunity to improve his English language ability. [66] There is no evidence that the appellant and his spouse have settled into the wider community beyond his employment.[67] Taken cumulatively, the appellant's circumstances do not justify the Board making a recommendation to the Minister that his application be considered as an exception to policy.[50] To deal with the way in which the Board expressed its conclusion at [57] ([50] this judgment) cannot be correct. It is not the failure to achieve the minimum standard of English that will be relevant to special circumstances relating to English competence. After all if the appellant had achieved that standard he would have qualified for permanent residence. The only reason that his circumstances are being considered pursuant to s 18C(1)(b) is because he has not achieved this criteria. What is relevant in assessing special circumstances relating to the appellant's English language ability is how good the appellant's written and oral English actually is. For example, if it is near the IELTS standard then this could hardly be considered a negative factor at all. If the applicant has virtually no written or oral English then this is likely to be a negative factor relevantly taken into account in assessing whether there are special circumstances. [51] The same type of approach to the English language standard was taken by the Board in Mr He's case. There the Board said (at [51]) the fact the appellant could not meet the IELTS test weighed strongly against him. This approach has the very circularity the appellants complain about. The lack of the English IELTS certificate prevents the appellant from obtaining residency. When the alternative is considered, whether there are special circumstances, the same failure to provide the IELTS certificate means there cannot be special circumstances. If Parliament had intended that failure to produce the IELTS certificate was to be fatal to the special circumstances test then it could easily have said so. It did not. As I have said the proper approach was for the Board to consider the appellant's actual English skills both at work and in a social context. [52] The Board took the same approach in the Jinbo Liang case. It focused ([52]) on the failure to provide evidence that the appellant satisfied the English requirements or the IELTS certificate. I accept in this case the Board made the point it had no information on which it could assess the appellant's English language ability. Part of the responsibility for this mistaken approach by the Board must rest with the representative of the appellants (not counsel in the present case). Theychose to argue the application before INZ and the appeal before the Board on the basis that the applicants were deemed to have passed a minimum standard of English language based on SM5.5(b)(iii) of the Policy. As a result the Board had only patchy information about the appellant's actual ability in English and similarly their families' ability. [53] I am satisfied that the Board in each case did make an error of law in their approach. It elevated the failure to provide an IELTS certificate to effectively a knock out negative to the claim of special circumstances by the appellants. It should not have done so. It should have considered the individual capacity of each appellant to speak and write English in the context of his job and social circumstances. This approach by the Board was an inappropriate fetter on the Board's discretion. [54] Simply because an applicant cannot provide the IELTS certificate does not mean the Board should include this failure in the seriously negative side of the ledger. To do so introduces, as I have said, the unfair circularity complained of by the appellant. An analysis of the actual English language ability of the applicant is the relevant information. [55] Representatives of applicants, however, must openly reveal the applicant's capacity in written and oral English if they wish to avoid an inference by INZ or the Board that the applicant has little or no English. [56] Part of the concern about an applicant having limited English relates to the ability of the applicant to contribute socially and to successfully settle in New Zealand. The fact the appellants, in terms of the skilled migrant policy (SM20) are for the purpose of their application deemed to have successfully settled in New Zealand is not helpful in the context of a special circumstance argument. The deeming provisions will not apply to these factors when the Board is considering special circumstances. [57] If the appellants can show actual social contribution and successful settlement in New Zealand despite limited English then this may reduce the negativeimpact of limited English. What must be kept in mind is that the appellant's English ability is but one of what is likely to be many factors relevant to special circumstances. [58] I am satisfied that the RRB in each case erred in law when it saw each appellant's failure to provide the IELTS certificate as a pivotal negative factor in its decision as to whether special circumstances existed. [59] In summary, as to English language competence, the Board is entitled to take into account the actual English language skills of an applicant. This should be done in the context of employment and in a social setting. An applicant who is able to function socially and in their employment using English as necessary, thereby contributing to New Zealand society, but who would not pass IELTS is unlikely thereby to have negative factors counting against him when the RRB considers special circumstances. [60] The appropriate course for me is to allow the appeals, set aside the decisions of the RRB to dismiss the appeals and remit the matter back to the RRB for further consideration based on my approach (s 115(3)(b)). [61] As I indicated it will be appropriate now, no doubt, for the RRB to call upon the applicants to provide detailed information regarding their capacity in English and to provide material about their social integration and capacity to function in New Zealand. __________________________ Ronald Young JSolicitors: R E Harrison QC, PO Box 1153, Auckland, email: rehqc@xtra.co.nz P McCarthy, Crown Law, PO Box 2858, Wellington, email: peter.mccarthy@crownlaw.govt.nz