MYPAY NZ LTD v MBIE [2022] NZHC 1466

MYPAY NZ LTD v MBIE [2022] NZHC 1466 [22 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-56[2022] NZHC 1466UNDER Judicial Review Procedure Act 2016IN THE MATTER of an application for Judicial ReviewBETWEEN MYPAY NEW ZEALAND LIMITEDApplicantAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 2 February 2022Appearances: J T Burley and K L Chiu for ApplicantC P Paterson and P J O'Boyle for RespondentJudgment: 22 June 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 22 June 2022 at 4.30pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:McVeagh Fleming, AucklandMeredith Connell, AucklandIntroduction[1] MyPay New Zealand Limited (the applicant) applies for judicial review of adecision made by Immigration New Zealand on 23 September 2020 declining to grantthe applicant's application for accredited employer status (the decision). The ChiefExecutive of the Ministry of Business, Innovation and Employment (MBIE) who hasoverall responsibility for Immigration New Zealand (INZ) which is an agency withinMBIE, is named as the respondent.[2] The applicant alleges that the decision was founded on material errors of lawand fact; breached the rule against bias; breached natural justice; breached theapplicant's legitimate expectation of a positive reconsideration of the declined originalapplication; was made unreasonably and irrationally; and was made in breach of therespondent's duty to act consistently.Background[3] The applicant is an incorporated company that develops digital paymentplatforms incorporating various international mobile payment methods such as Alipay,and WeChat Pay. Alipay and WeChat Pay are both payment platforms established inChina which are widely used by members of the Chinese community in New Zealand,which is an important market for the applicant. Because of the applicant's focus onmembers of the Chinese community in New Zealand, it considers that it is criticallyimportant that its employees are fluent in the Chinese language and familiar with theChinese payment platforms used by the applicant to transact its business for its clients.[4] Having experienced difficulties in attracting and retaining suitably experiencedand skilled employees, and being unable to sponsor or offer prospective employees awork-to-residency visa, the applicant made an online application to INZ on 17 April2020 to be granted "Accredited Employer" status. Being an Accredited Employerenables the employer to use the Accredited Employer Work Visa (AEWV) to hiremigrants on visas for up to three years. Accredited Employers are required to pay atleast the New Zealand median wage, show that they cannot find suitable New Zealandresidents to fill the employment positions and meet criteria to show that they will be agood employer.[5] On 22 May 2020, INZ wrote to MyPay confirming receipt and acceptance ofits application and setting out the processing timeframes. On the same date INZ wroteto and sought information from the Labour Inspectorate and WorkSafe New Zealandabout any interactions they had had with MyPay, and also sought information fromACC as to whether the company had good workplace practices.[6] On 24 July 2020 following an initial assessment by an immigration officer,INZ wrote to the applicant's solicitors, Forest Harrison, acknowledging receipt of theapplication, and requesting further information relating to the employment positionsto be filled. In this letter INZ noted that the salary ranges for prospective employeescontained in the application were below the required minimum threshold, andprovided information regarding the minimum salaries required to be paid in order tosupport an AEWV. The letter also advised that INZ was required to assess whetherthe applicant's current financial position satisfied its immigration instructions foraccreditation, and requested the applicant to provide financial statements covering themost recent two years of financial reporting. INZ also requested further informationregarding the applicant's:(a) Human resources policies and processes.(b) Evidence of any training undertaken in the previous 12 months tofurther the professional development of New Zealand citizens orresidents employed by the applicant.(c) Information regarding the ratio of New Zealanders employed by theapplicant, and information outlining the steps the applicant intended totake to alleviate its reliance on a migrant workforce.(d) Information detailing how the applicant intended to comply with theimmigration regulations.(e) Information about workplace practices relating to the promotion ofdiversity.[7] Having made an initial assessment of MyPay's application, on 3 August 2020INZ sent a Potentially Prejudicial Information (PPI) letter to the applicant's solicitorsadvising that INZ had identified a number of issues "which may have a negativeimpact on the outcome of your application". In the letter, INZ detailed a number ofmatters regarding the application that it considered were unsatisfactory. It noted thatthe financial statements which had been provided were for an entirely different entitythan that applying for accreditation; identified and explained deficiencies in theinformation provided in support of the application; and stated that INZ requiredevidence that New Zealanders employed in the same or similar roles as those MyPayintended to fill with migrant employees were being paid salaries equivalent to thosethat it proposed to pay the migrant employees it wished to employ using the AEWVscheme. INZ also noted several other deficiencies in the information provided by theapplicant, and said that any further information was required to be provided by17 August 2020. The letter further advised that if the applicant did not send anycomments or information by that date, INZ would proceed to make a decision basedon the information already given, in which case it was unlikely that the applicationwould be approved. INZ advised:As the issues detailed above may affect the outcome of your application, weare bringing them to your attention out of fairness to you.We have not made a decision on your application at this stage. This letter givesyou the opportunity to make any comments and submit any additionalevidence or information in relation to these issues.[8] On 17 August 2020 the applicant provided further information to INZ intendedto address and satisfy INZ's request for further information, and on 2 September 2020the applicant sent a further email to INZ enclosing: a covering letter; training log;IEFSL External Training Register; and a Governance Training record.[9] On 23 September 2020 INZ sent a letter to the applicant's solicitors advisingthat it had decided to decline the application for employer accreditation because it wasnot satisfied that the applicant's business met all the requirements set out in the INZTalent (Accredited Employers) Work Instructions. In this letter INZ noted that byemail dated 2 September 2020 the applicant had provided further evidence in responseto INZ's letter of 3 August 2020. INZ then set out its reasons for declining theapplication. It said:When considering the proportion of the workforce who are New Zealandcitizens or residents we can only consider the ratio of employees [and] we canonly use figures from the entity that is applying for accreditation. Therefore,we must only consider the ratio of employees at [MyPay] NZ Ltd.[MyPay] NZ Ltd has provided evidence of attempting to hire New Zealandcitizens or residents and have provided additional evidence of training of thoseindividuals.Based on the information declared in the online application, it appears that thebusiness currently employs 16 staff, and 9 of them are New Zealand citizensor residents. Therefore the current staff of the company consists of only 56%New Zealanders.While there are a number of positive factors under WR1.25.5(c), these factorsdo not outweigh the fact that the proportion of [MyPay's] workforce who areNew Zealand citizens or residents shows that [MyPay] does not have acommitment to training and employing New [Zealand] citizens or residencevisa holders.We remain dissatisfied that the application meets immigration instructionWR1.25.5(c)(iii), therefore the application for accreditation has beendeclined.[10] In the 23 September 2020 letter INZ also advised the applicant that it may beeligible to request a reconsideration of the decision to decline its application, and if itwished to apply for reconsideration of the decision it was required to make a writtenrequest to the Christchurch Accreditation Team and pay a fee of $240.00 within14 days of being notified of the decision declining the application.[11] On 6 October 2020 the applicant's solicitors made an application to INZ forreconsideration of its assessment decision, which was accompanied by furtherinformation relating to the applicant's workforce ratio to show that the INZ work forceratio requirements were now met.[12] Following receipt of the applicant's reconsideration request, on 19 October2020 and in accordance with its standard practice as regards the reconsiderationprocess, INZ allocated the reconsideration to a different immigration officer,Ms Nicholson-Canning. Ms Nicholson-Canning conducted a full review of MyPay'sapplication, which included the information provided for the initial assessment and thefurther additional information provided by MyPay to INZ. Ms Nicholson-Canningconducted an assessment of the application for accredited employer status afresh andby reference to the criteria set out in the immigration instructions. Ms Nicholson-Canning concluded that the additional information provided by MyPay meant that thereason for the decline was no longer valid, however she had a number of otherconcerns which did not appear to have been fully addressed in the initial applicationfor accreditation. In the course of her review she also noted that there were a numberof documents which appeared to be missing.[13] Ms Nicholson-Canning and Mr Lam exchanged emails on 24 November 2020regarding progress with the reconsideration of the application, and on 30 November2020 Mr Lam sent her an email in which he requested an update that day.[14] Later that day Ms Nicholson-Canning forwarded a second PPI letter to theapplicant's solicitors. In this letter she advised that based on the evidence provided bythe applicant with its reconsideration request, INZ was now satisfied that the applicanthad a staff ratio of 70.59 per cent of New Zealand citizens, and that it appeared to havebeen recruiting in New Zealand again. She said:As this was the only aspect of WR1.25(c)(iii) that was declined on and it nolonger appears to be an issue it appears the applicant may be compliant in allaspects of WR1.25(c)(iii) based on the original [Immigration Officer's]rationale.While the original decision was correct, based on the new informationprovided with the reconsideration application the reason for the decline nolonger appears valid.Despite the above – I have noted further concerns that were not fully addressedin the initial application for accreditation therefore, these will need to beaddressed fully before a final decision can be made. These concerns areoutlined below [15] Ms Nicholson-Canning then identified several issues as not having beensatisfied by the information provided in support of the application:(a) Under the heading "Sound financial position" INZ noted that thedocuments provided by the applicant did not specifically provide thefinancial information for the applying entity, but rather referred to otherentities that are included under the same parent group. INZ noted thatfrom the information provided it appeared that audited accounts ofMyPay NZ Ltd for the financial years 2018 and 2019 showed that itwas in a net liability position and had suffered net losses in thosefinancial years of $184,000 and $664,000 respectively. INZ requestedthe applicant to provide further evidence to demonstrate that it was in asound financial position, and advised that:We are not yet satisfied that you are in a sound financialposition as per immigration instruction WR1.25(c)(i) andyour application for accreditation may be declined.(b) Under the heading "Human resource policies and processes which areof a high standard" INZ noted that the employment agreementaccompanying the application included a clause providing foremployees to be employed on the basis of trial periods. It pointed outthat the Employment Relations Amendment Act 2018 which came intoforce on 6 May 2019 provided that the 90 day trial periods wererestricted to businesses having 19 or fewer employees. INZ said thatalthough the original application stated that the applicant had16 employees, the further information provided indicated that theapplicant was actively recruiting and may soon have 19 employeesmeaning it would no longer be able to rely on the trial period provisions.INZ therefore requested the applicant to have another employmentagreement prepared that reflects "accurate lawful requirements ofbusiness with more than 19 employees".(c) INZ also noted that further information it had requested regarding theapplicant's human resources policies and procedures had not beenprovided as a number of attachments referred to by the applicant asbeing attached to its email to INZ dated 17 August 2020, had not beenattached. These documents were: the applicant's Health and SafetyManual; Policy Manual; Pay Training Manual; Recruitment processguideline; and Induction Day power point document. INZ accordinglyrequested the applicant to provide those documents and the requestedamended employment agreement. It said:We are not yet satisfied that the information you haveprovided demonstrates human resource policies and processeswhich are of a high standard as per immigration instructionWR1.25(c)(ii). The application may therefore be declined.(d) Under the heading "Demonstrable commitment to training andemploying New Zealand citizens or residence class visa holders" INZnoted that in support of its application the applicant had provided atraining log for a designated business group described as the "IEFSLExternal Training Register, and Governance Training record".However the training log for the business group appeared to be a list ofnames with dates marked off, which was not in itself indicative oftraining. INZ noted that the IEFSL External Training Register appearedto relate to training for multiple entities within the group, and repeatedthat INZ was required to assess information specific to the applyingentity only. INZ concluded:To date we have not yet received sufficient evidence of ademonstrable commitment to training New Zealand citizensor residents.For the reasons outlined above, we are not yet satisfied thatthe company's current efforts demonstrate a commitment totraining New Zealand citizens and residents, as stipulated byimmigration instruction WR1.25(c)(iii). The application maytherefore be declined.(e) Under the heading "Risks to the integrity of New Zealand'simmigration or employment laws or policies" INZ noted that theapplicant had referred in its response to an earlier INZ letter havingenclosed a MyPay NZ Ltd Organisational Chart, MyPay employeepayslips for the period July to February 2020, and an IRD 348 form forthe July to February 2020 period, however those documents had notbeen attached to the email in which they were referenced. INZrequested the applicant to provide the information. It said:We are not yet satisfied the applicant has roles that wouldmeet the required salary threshold therefore there may be arisk of salary inflation should accreditation be granted.It appears that accrediting your company may createunacceptable risks to the integrity of New Zealand'simmigration law due to the factors outlined above. Theapplication therefore does not meet immigration instructionsWR1.25.5(j) and may be declined.[16] Ms Nicholson-Canning concluded her 30 November 2020 letter:As the issues detailed above may affect the outcome of yourapplication, we are bringing them to your attention out of fairness toyou.We have not made a decision on your application at this stage. Thisletter gives you the opportunity to make any comments and submitany additional evidence or information in relation to these issues.You may provide further information by 15 December 2020.If you do not send any comments or information by the date requestedabove we will make a decision on your application based on theinformation you have already given us. We are unlikely to approveyour application based on this information.[17] On 3 December 2020 the applicant's solicitor Mr Lam, emailed INZ. He said:We have not heard back from INZ regarding the information that waspreviously supplied, so to be proactive our [client] instructs that we follow uptoday. Please see copies of correspondences to INZ with the information thatwas identified by INZ to be missing in its file:1. Email to Marcus [Lower]1 on 17 August with 14 attachments2. Email to Marcus [Lower] on 2 September with 5 attachmentsWe also provide new documents to assist INZ with its proper and speedyassessment with 5 attachments.1) Updated and extra Training and Payroll information. Payment ofsalaries for $80,000 or more is within the market rate for the positionsadvertised and any risk of income inflation is rejected as assumptionand conjecture.2) Updated Employment Agreement with changes required by INZreflecting trial period and hours of work (as this is a template the hourswas formerly a placeholder in any regard)3) Miepay and [MyPay] organisational chart showing the connectionbetween the Publicly traded Australian NSX entity and the currentcompany which is a 100% owned subsidiary of the Australian entity.4) Equity and Liquidity Analysis letter and comments from thebusiness's Financial Controller; and5) 12-month forecast for MyPay New Zealand limitedPlease also let us know when is a good time to arrange a phone conversationwith you.1 Mr Lower held the position of Business Immigration Specialist at INZ.[18] Ms Nicholson-Canning replied to Mr Lam's email on 4 December 2020,advising that she would be available for a telephone call with him the followingMonday morning. Then on Monday 7 December 2020 Ms Nicholson-Canningtelephoned Mr Lam and following their telephone conversation he sent her a copy ofthe emails and the enclosures that the applicant's solicitors had sent INZ with theiremail of 2 September 2020.[19] On 8 December 2020 Forest Harrison sent an email to INZ in response to INZ'sletter of 30 November 2020. In this letter the applicant's solicitor, Mr Lam, referredto a conversation he had with Ms Nicholson-Canning on Monday 7 December 2020.Mr Lam said that it appeared that INZ had lost an email his firm had sent to INZ on 2September 2020, and consequently had failed to assess the information enclosed withit which addressed the matters raised by INZ in its letter of 3 August 2020, and hadalso failed to reconsider the matters raised in INZ's letter of 30 November 2020 inlight of that further information. Mr Lam said however, that as INZ had referred to an"invoice for Directors Regulatory Update 2019" in its letter of 30 November 2020,INZ must have received the email sent by Forest Harrison to INZ on 2 September2020, as it was that email which contained the invoice for Directors Regulatory Update2019 as an attachment. Mr Lam said:5. This is compounded by the fact that the initial decline decision letterof 23 September 2020 does not indicate that further information hasnot been received. Indeed, the decline decision acknowledges receipt,and states that "on 02 September, you provided the following evidencevia e-mail".6. The decline decision did not state any other issues that failed to meetINZ instructions and only identified an issue relating to the"proportion of [MyPay's] workforce". This has now been rectified bythe natural attrition of time and covid-19 resulting in the departure ofmany work visa holders.7. It is not reasonable nor consistent with the principles of Fairness andNatural Justice to find new issues with the applicant's request forconsideration for accreditation when there was no identifieddisqualifying issue in the 23 September 2020 decision. It is a breachof Fairness and Natural Justice to issue a PPI letter based on INZ'sassessment when the information provided to INZ has been lost byINZ. It is a further breach of Fairness and Natural Justice to insist onproceeding with the initial PPI letter notwithstanding INZ's loss ofprobative information has been rectified and provided to it inreplacement of said lost evidence.8. In any case, our client has provided the further information on3 Dec 2020 which answers the issues relating to the matters of[MyPay] NZ Ltd's financial statuses [sic]. It has provided updatedemployment agreement, as well as extra Payroll information whichindicates that the median wage of the applicant's employees for thetype of positions sought are at market rate of $80k or above (hourlyrate equivalent of $38.46@ 40 hours a week). The suggestion that theapplicant will be a risk of engaging in salary inflation is without merit.An assessment of the recent Employer IRD pay run report will showthat for the month of Oct 2020 the average hourly rate across the entireorganisation was $53, across 19 employees total. Adjusting thefigures for full time workers this average hourly pay is $45.43.INZ therefore has no reasonable assessable risk that anyemployees income has been or is open to inflation.Our client confirms that they have provided all information that should beconsidered by INZ at this stage.[20] Email correspondence between Mr Lam and INZ established that the initialINZ decision maker who had declined the application on 23 September 2020 hadoverlooked the attachments to MyPay's solicitors' email dated 17 August 2020. On11 December 2020, following the exchange of emails between INZ and the applicant'ssolicitors, INZ Immigration Manager, Mr Colin Paintin, emailed Mr Lam. He said:Hi [Mr Lam],Thank you for your email.I have spoken with my team around the situation below and can now hopefullyprovide clarity and advise next steps.My understanding is that your response sent to Marcus [Lower] on the 17thof August was quarantined by our email system and then subsequentlyreleased. It would appear that once this was released Marcus did not spot theattachments included within the email due to the formatting of the release ofthe email. We apologise for this oversight.[Ms Nicholson-Canning] has now reviewed the original decision andapplication as a whole and has decided that whilst the original decision wascorrect, there is now sufficient new information to consider the originalground for decline is now met. However during the course of completing thereconsideration [Ms Nicholson-Canning] has identified a number of furtherissues that need addressing in order for the application to meet all immigrationinstructions.It is my understanding that [Ms Nicholson-Canning] has a copy of the emailsent on the 17th of August along with other correspondence from you onbehalf of your client. Are you in a position to confirm whether there isanything further your client would like to submit in order to address theconcerns raised by [Ms Nicholson-Canning]? If there isn't anything additionalwe will move ahead with assessing the information submitted andcommunicate an outcome on the reconsideration early next week.Regards,Colin PaintinImmigration Manager[21] The applicant's solicitor responded by email also dated 11 December 2020 sentto Ms Nicholson-Canning and copied to Mr Paintin in which he requested INZ toproceed with reconsidering the application for accreditation and assessing the furtherinformation submitted. He said:Hi [Ms Nicholson-Canning]We further attach market rates analysis which indicate that payment of 80k orabove is entirely within the normal expected payment range for the positionsthat the employer is seeking accreditation for. The business is one of NewZealand's premier FINTech companies. This is within the objectives of theaccreditation category. It is puzzling to see where the alleged salary inflationmay come from when the market rate is in the 76 – 110k range for the roles inquestion. Any risk of inflation cannot be reasonably classified as significantwhen the difference between the average rate and the benchmark of 79560 isless than 4%.Please proceed with assessing the information submitted.Finding out there was information which was missed in the initial assessmentis disappointing for our client to hear. If no reconsideration was lodged thenthey would not even have become aware of this.Kind regards,[Mr Lam][22] On 13 January 2021 INZ declined the application. The 13 January 2021decision and INZ's reasons for declining the application were set out in a letter sent toMyPay's solicitors on that date. The reasons for the decision set out the four criteriacontained in WR1.25 and included a review of the procedural history of the applicationincluding details of the outcome of the initial assessment and declining of theapplication and the reasons for that decision. The decision noted that the applicationhad initially been declined on the basis that MyPay had not satisfied the WR1.25(c)(iii)criteria, but that based on the new information provided by MyPay with itsreconsideration application that criteria had been satisfied and the reason for decliningthe application no longer appeared valid. However the decision further advised:Despite the above – We noted further concerns that were not fully addressedin the initial application for accreditation.Our decision on your applicationWe have decided to decline this application for employer accreditationbecause we are not satisfied the business meets all the requirements set outunder the Talent (Accredited Employers) Work instructions.Sound financial positionIt is noted that the documents provided do not specifically provide thefinancial information for the applying entity, MYPAY New Zealand Limited,but rather refers to other entities that are included under the same parent group.Although the entities are under the same group, we can only assess financialsspecific to the applying entity.The above section also appears to suggest that MYPAY New Zealand, as atFY19 [financial year 2019] was in a net liability position and had suffered netloss, amounting to $184k and $664k respectively.Further in the report, a table presents a historical income statement summaryfor MYPAY New Zealand Limited (page 17).This table shows that the applicant has experienced net losses for 3 financialyears in a row, ($3,000) in FY17, ($111,000) in FY18, and ($664,000) inFY19.It appears that the applicant may not be in sound financial position based onthe apparent history of net losses over the last 3 financial years for which datais available.In response to the PPI sent 30 November 2020 the applicant supplied therequesting email and attachments from 17 August 2020 and additionalinformation.From the 17 August 2020 email response, [the] applicant has supplied:- Companies register screenshot showing MYPAY is part of MIEPAY andsubsequently the MIEPAY (Australian company) financial report forMarch 2020.As previously noted this is not sufficient as we must assess the financials fromthe entity applying for accreditation. Despite noting that separate financialsappear to exist as they are referenced in the RSM DDC report provided withthe initial online application[,] individual financial reports for MYPAY havenot been provided.Regardless of the above if the MIEPAY reports were taken into account, theywould not mitigate our concerns as they also show a history of loss. MIEPAYshows net loss of $(2,663,047) in FY20, and $(739,810) in FY19. Equity forMIEPAY is also $(907,720) in FY2020, down from $791,883 in FY2019. Thisdoes not appear indicative of the applicant being in sound financial position.Risks to the integrity of New Zealand's immigration or employment lawsor policiesIn response to the PPI sent 30 November 2020 the applicant supplied therequesting email and attachments from 17 August 2020 and additionalinformation.From the 17 August 2020 email response, [the] applicant has supplied detailson current employees' salaries.It appears the NZ citizens currently holding the roles of BusinessDevelopment Specialist and Businesses Development Manager are earning$42,500 and $65,000 per annum respectively.This is below the $60,000-$80,000 for Business Developer and $70,000-90,000 for Business Acquisition Specialist that the applicant declared in theiroriginal online application.The risk that the applicant may inflate salaries to meet the requirement ofWTR visa applications should they be granted accreditation remains.Applicant has also submitted payscale evidence. The range of pay was nevercalled to question. The concern was whether the applicant had pay paritybetween their New Zealand citizen or resident employees and what they arerequired to pay migrants under WTR. Based on the payslip, and employeeinformation received, it appears there may [be] a risk of inflation.We are satisfied there may be a risk to the integrity of immigration laws orpolicies as per immigration instruction WR1.25.5(j) therefore this applicationhas been declined.The INZ MyPay file warnings[23] The INZ electronic file system has a feature that enables warnings to be noted.These warnings appear each time the file is accessed. There were three warnings notedon INZ's MyPay New Zealand file relating to its application for accreditation. Thethree warnings related to:(a) A warning on the file effective 10 June 2020 relating to a site visit madeby INZ officers on 3 May 2018 to MyPay's business premises.(b) A warning on the file effective 23 July 2020 relating to concerns thathad been identified requiring further employer financial information toassess employer sustainability.(c) A warning on the file effective 3 November 2020 relating to anonymousinformation received by the Police through the "Crime Stoppers"telephone line.The immigration instructions[24] The objectives, procedures and criteria applicable to employers' applicationsfor accreditation under INZ's applicable Talent (Accredited Employers) WorkInstructions accreditation scheme as at the time of MyPay's online application, are setout in WR1.25 which provides:WR1.25 Requirements for accreditation (07/10/2019)a. The objective of accreditation is to allow accreditedemployers to supplement their own New Zealand workforce in theircore area of business activity through:i. the recruitment of workers who are not New Zealand citizensor residence class visa holders and whose talents are requiredby the employer; andii. the accredited employer having direct responsibility for thoseemployees and their work output.b. Under Talent (Accredited Employer) Work Instructions,accredited employers may offer employment to workers who are notNew Zealand citizens or residence class visa holders without the needto establish that there are no New Zealand citizens or residence classvisa holders suitably qualified by training and experience available,or readily able to be trained, to do the work.c. Accreditation will be granted where an immigration officer issatisfied that an employer:i. is in a sound financial position; andii. has human resource policies and processes which are of a highstandard; andiii. has a demonstrable commitment to training and employingNew Zealand citizens or residence class visa holders; andiv. has good workplace practices, including a history ofcompliance with all immigration and employment NewZealand laws including but not limited to the Immigration Act2009, the Accident Compensation Act 2001, the MinimumWage Act 1983, the Health and Safety at Work Act 2015, theEmployment Relations Act 2000, Wages Protection Act 1983,Parental Leave and Employment Protection Act 1987, theEqual Pay Act 1972 and the Holidays Act 2003.d. Subsidiary companies cannot be covered by the accreditationof a parent company. To be accredited they must apply in their ownright.WR1.25.1 Applying for accreditationa. An application for accreditation must be made online usingthe electronic form provided on the INZ website. Applications mustbe accompanied by documents which demonstrate that the employermeets the requirements for accreditation set out at WR1.25.WR1.25.5 Determining applications for accreditationf. An immigration officer must be satisfied that the informationand documents included in an application for accreditation aregenuine and accurate, and may take any steps it determines necessaryto verify such documents and the information they contain, includinginterviews. An immigration officer will decline an application foraccreditation if they are satisfied that an employer provided false ormisleading information in support of an application, or withheldrelevant information that was prejudicial to the grant of accreditation.WR1.25.10 Reconsideration process for applications for accreditationwhich are declineda. There is no statutory right of appeal against the decision to decline anapplication for accreditation, however INZ will reconsider a declinedapplication for accreditation where new information is promptlyprovided within 14 days of the employer being notified of the decline.IMS evidenceThe AMS computer file and assessment process[25] In her affidavit evidence immigration officer Ms Nicholson-Canning hasdescribed INZ's Application Management System (AMS) and the warning facility onthe internal computer system that is used to record an immigration officer's decision-making process. It contains records of notes made by immigration officers andcorrespondence between MyPay and INZ. Ms Nicholson-Canning produced the fullrecord of the AMS notes as an exhibit to her first affidavit. The AMS warnings on thesystem will appear as a "pop-up" when the electronic file is first accessed, howeverthe immigration officer will have to specifically select the warning in order to view itscontents. Warnings are recorded against individual client AMS files in a separate tabto general AMS notes. In the course of an immigration officer's processing andassessment of an accreditation application, AMS notes and any warnings on the fileare not routinely disclosed to the applicant as the information they contain often comesfrom anonymous sources or informants whose identities need to be protected. Routinedisclosure of this information could be to the informant's detriment or couldundermine INZ's ongoing investigations. Ms Nicholson-Canning says that while thecontents of AMS notes and warnings can be made the subject of requests by anapplicant under the Official Information Act 1982, in the absence of such a request noinformation is disclosed by INZ to an applicant because the applicant provides theinformation that is to be assessed by the INZ officer.[26] Ms Nicholson-Canning also describes the general way in which immigrationofficers conduct the assessments. If an officer requires additional information aftermaking an initial assessment of an application, they may send a request for furtherinformation to the applicant. If the officer is not satisfied that the information, orfurther information, provided by the applicant supports the application they will senda potentially prejudicial information letter (PPI letter) to the applicant outlining theirconcerns and giving the applicant an opportunity to respond and provide furtherinformation. Upon receipt of any further information from the applicant and followingan assessment of it the immigration officer can either proceed to make a decision onthe application or alternatively send a second PPI letter where the further informationprovided has not satisfied the concerns which were identified in the first letter or haveraised further concerns. However the use of more than one PPI letter is not common,and INZ encourages officers to address all of their concerns in a single PPI letter. APPI letter must be sent before a decision is made, as this ensures that an applicant hasbeen given fair notice of the issue(s) identified by INZ and has an opportunity torespond to the concerns before a decision on the application is made.Immigration officer's assessment[27] Ms Nicholson-Canning has described the process she followed when carryingout her assessment of MyPay's application following the applicant's request for INZto conduct a reconsideration of its application. She states that when she accessed theAMS and MyPay's notes she saw the pop-up page on which three warnings werenoted. Ms Nicholson-Canning clicked on the first warning dated 10 June 2020, whichrelated to a site visit undertaken by an INZ verification officer to business premises ofIE Finance Group Ltd in May 2018, to verify multiple offers of employment providedby that company and its associated business entities. She reviewed the notes whichreferred to a number of companies which appeared to have shown an unwillingness toprovide requested financial information. The companies associated with the warningincluded IE Financial Services Limited (which had been renamed PAL TECH Ltd on20 January 2020) and which was described as the parent company, and seven othercompanies including IE Finance Group Ltd and the applicant, MyPay NZ Ltd.Ms Nicholson-Canning states that she did not however refer to the verification reportrelated to this warning.[28] As regards the second warning dated 23 July 2020, Ms Nicholson-Canningnoted that it related to a request made by INZ for employer financial information inrelation to an employee's application for variation of visa conditions. MyPay was thesupporting company. Ms Nicholson-Canning also viewed the third warning dated3 November 2020 which related to anonymous information received by the Police onits "Crime Stoppers" telephone line.[29] In considering the June 2020 warning, Ms Nicholson-Canning noted that IEFinance Group Ltd had supported applications under the Skilled Migrant Category,and that the director of the company was Mr Lei Zhang who was also the director ofMyPay. Ms Nicholson-Canning made a search of the New Zealand Companies OfficeRegister and ascertained that Mr Zhang was also the director of IE Finance Group Ltd.She noted that MyPay had supported its application with documentation that referredto other companies, "IE Finance/MIE Pay", and her online enquiries into MIE Pay ledto her locating a timeline on the MIE Pay website which showed that MyPay was partof IE Financial Services Group in 2016.[30] Ms Nicholson-Canning notes that MyPay had earlier been requested to providedocumentation evidencing its financial position, employee training, and humanresource policies, and on 4 December 2020 she received further documents fromMyPay, which as well as providing the information required for the purposes of anassessment of its accreditation application, also set out the structure of the group ofcompanies it was within and showed MyPay's links to the companies named in thewarning. These documents showed that MyPay is a subsidiary of IE FinancialServices Ltd. Other information referred to costs or expenses shared between thecompanies in the group which appeared to include employee salaries and suggestedthat employees under one entity are seconded to or managed under another entitywithin the group. The human resources manual provided by MyPay was created byIE Financial Services Ltd which claims copyright over it. Also included was a "ToWhom it May Concern" covering letter enclosing training logs which MyPay reliedon in support of its application which stated that IE Money Ltd, IE Finance Ltd, IEProperty Lending Ltd, and MyPay comprise a designated business group under theAnti-Money Laundering and Countering Financing of Terrorism Act 2009.[31] Ms Nicholson-Canning states that she proceeded to review MyPay'sapplication in full, which involved her reviewing all of the information that had beenprovided by MyPay in support of its application and which was considered as part ofthe first assessment, as well as all of the additional information that had beensubsequently provided. She then considered the application afresh and against thecriteria set out in the immigration instructions. As regards the June 2020 warning,Ms Nicholson-Canning says that while the information provided by MyPay confirmedthat it was part of the group of companies, the fact that it existed within a corporategroup did not impact her decision-making. She explains that the information in thewarning related to the unwillingness of the named companies to providedocumentation relating to the financial position of specific companies, and as theimmigration instructions require an applicant seeking accreditation to satisfy INZ thatit is in a sound financial position, she was required to consider MyPay's owndocumentation and assess its individual financial position. Ms Nicholson-Canningsays therefore that irrespective of the warning and its contents, she was required tofocus on and consider MyPay's financial position, and the only effect that the warninghad on that process was whether or not her assessment of the financial materialprovided mitigated or substantiated the concerns raised in the warning.[32] After reviewing MyPay's financial information, she concluded that it may notbe in a sound financial position based on its history of having net losses over the threefinancial years for which financial information was provided by the company as partof its application. Ms Nicholson-Canning notes that in response to the PPI letter dated30 November 2020 in which INZ had requested MyPay to provide further evidence todemonstrate that it was in a sound financial position, MyPay had subsequentlyprovided further information on 11 December 2020 and asked for the reconsiderationto proceed. She says that by this process MyPay had been given an opportunity toprovide further financial information to satisfy INZ that it was financially sound, andhad not done so, and on the basis of the financial information MyPay had provided,she concluded that it had failed to satisfy INZ that it was in a sound financial positionas required by WR1.25, and she accordingly decided that the application should bedeclined.[33] Having made her decision, Ms Nicholson-Canning sent her assessment anddecision for internal review in accordance with INZ procedure and the reviewers didnot raise any concerns. Her decision was then notified to MyPay through its solicitorsin her letter dated 13 January 2021.Grounds of reviewMaterial error of fact[34] The applicant's first ground of review in its amended statement of claimalleges that the INZ decision makers responsible for making the first and seconddecisions to decline the application made a material factual error by referring to andtaking account of warning information on the INZ file relating to three unrelatedbusiness entities: IE Financial Services Ltd, IE Finance Group Ltd and IE MoneyLimited.[35] The applicant says that it is separate from and unrelated to the three "IE"companies, and the respondent did not disclose the existence of the warning to theapplicant at any stage during the events and the process undertaken prior to makingthe decisions to decline the application.[36] The applicant alleges that by taking the irrelevant and prejudicial informationinto account, the respondent's decisions were founded upon a material error of fact.Procedural impropriety — apparent bias[37] The applicant alleges that information on the INZ file noted that while MyPayhad provided evidence of having made genuine attempts to hire New Zealandemployees, INZ nevertheless considered that because the applicant required itsemployees to be able to speak the Chinese language, it had not provided sufficientevidence to demonstrate having made genuine attempts to recruit New Zealanders foremployment.[38] The applicant alleges that this comment or warning information was taken intoaccount by the INZ decision makers when deciding to decline the applicant'sapplication for accreditation, and the information was not disclosed by INZ to theapplicant. The applicant alleges that the information and/or comment creates anegative profile and impression of MyPay in relation to its application foraccreditation. The applicant alleges that in the circumstances there was a reallikelihood of bias against MyPay when the INZ decision makers made their decisionsto decline the application for accreditation.Breach of natural justice[39] Under this heading, the applicant says that INZ issued a second PPI letter on30 November 2020 raising substantially the same matters as had been previouslyraised in the earlier INZ letter of 3 August 2020, notwithstanding that the applicanthad already responded to the first PPI letter by providing the information that had beenrequested. The applicant says that it was not advised by INZ that the information ithad provided in response to the first PPI letter had raised further issues of concern.And it says that the second INZ decision maker, after reviewing the information theapplicant had provided, failed to advise the applicant of any remaining concerns orissues and failed to give it an opportunity to respond to any specific issues of concernthat had been identified.[40] The applicant alleges that by reason of INZ's failure to afford it an opportunityto comment on and respond to any issue of concern which had been identified beforeproceeding to reconsider and determine the application for accreditation, therespondent acted in breach of the principles of natural justice.Error of law[41] Under this heading the applicant notes that Immigration Instruction A1requires all immigration officers to act in accordance with the principles of fairnessand natural justice when deciding applications, which requires the observance ofnatural justice and the absence of bias.[42] The applicant further says that Immigration Instruction WR1.25.10 which setsout the process to be followed for the reconsideration of accreditation applications,does not authorise an immigration officer undertaking a reconsideration of a declinedapplication to decline the application on grounds that had previously been assessed ashaving been satisfied.[43] That applicant therefore says that by declining the accreditation application onthe grounds that criteria which had previously been found to have been satisfied werenot satisfied, the INZ decision maker made an error of law by failing to comply withimmigration instructions A2, A1.1, A1.15 and WR1.25.10.Unreasonableness and irrationality[44] Under this heading the applicant alleges that by declining the application foraccreditation upon grounds that had previously been assessed as having been satisfied,the INZ decision maker acted in a manner that was unreasonable and irrational.MyPay says as regards the INZ reconsideration process, the critical issue is whether itwas unreasonable for INZ to decline MyPay's application on grounds which it hadpreviously assessed as being satisfied. The applicant says that no sensible (reasonable)decision maker acting with due appreciation of their responsibilities could havereconsidered and declined MyPay's application on grounds which had previously beenassessed by INZ as having already been satisfied.Legitimate expectation and duty to act consistently[45] Under these two headings the applicant alleges that the provisions ofWR1.25.10 providing for an applicant to request reconsideration of a declinedapplication imply that INZ's reconsideration will be confined to the grounds on whichthe decision to decline the application was based and where there is further evidenceprovided by the applicant which might support a different conclusion which isfavourable to the applicant.[46] The applicant says that the single ground on which the accreditationapplication was initially declined was based on INZ's finding that the proportion ofNew Zealanders employed by the applicant did not appear to meet the requirementsof WR1.25.5(c)(iii). The applicant claims that in these circumstances it had alegitimate expectation that INZ would carry out the requested reconsideration byreference to the single ground upon which its first decision declining the applicationhad been based. The applicant says that by declining to reconsider the application onfurther and additional grounds the INZ decision maker breached the applicant'slegitimate expectation that the reconsideration would be conducted according tosettled practice and consistently with the approach adopted by INZ when making itsinitial decision to decline the application.Relief sought[47] By way of relief the applicant seeks an order quashing the two decisions ofINZ which declined MyPay's accreditation application. In relation to the breach ofnatural justice and apparent bias grounds, the applicant also seeks relief by way of anorder declaring the comments and warnings to be unlawful and that they had beenerroneously placed on the applicant's file having no relevance to the application foraccreditation. The applicant also seeks an order directing the respondent to undertakeits consideration of the accreditation application by reference to the criteria applicableat the time the application was made and within one month of delivery of the Court'sjudgment.SubmissionsThe applicant[48] At the hearing of the application Mr Burley for the applicant advised that theapplicant's principal grounds are: the alleged breach of natural justice arising fromINZ's failure to disclose the existence of the three warnings on its file; bias; and breachof legitimate expectation that reconsideration of the application would be restricted tothe criteria upon which the decision to decline the application was based in light of thefurther information provided by the applicant in support of the application forreconsideration.[49] As regards the warnings on the INZ file, the applicant notes that it only becameaware of the existence of the warnings when the respondent made initial disclosure inthis proceeding. The applicant says that until then it had no knowledge of the warningsand no knowledge that it was under investigation in relation to any concerns held byINZ regarding its commercial operations. The applicant submits that INZ erred byproceeding to carry out its assessment of the accreditation application without havingdisclosed the existence of the warnings which had been placed on the file, to theapplicant, and further that the information contained in the warnings did notspecifically relate to the applicant. The applicant notes that the information recordedin the warning regarding a site visit made by INZ staff to the applicant's premises in2018 differs significantly from the verification report relating to the site visit, andfurther notes that although the INZ decision maker acknowledges having seen thewarnings when undertaking her reconsideration of the application, she did not haveregard to the verification report when reviewing MyPay's application.[50] In its amended statement of claim MyPay alleges that the INZ decision madeon 13 January 2021 to decline its accreditation application was made on the groundsthat the requirements of immigration instructions WR1.25(c)(i) and WR1.25.5(j) werenot met despite those criteria having been previously assessed by INZ as having beenmet. MyPay alleges that this decision to decline the application on the ground that itdid not meet the requirements of WR1.25.5(j) placed reliance on information that hadnot been brought to MyPay's attention and which as a consequence it had been givenno opportunity to respond to. MyPay notes that in INZ's second PPI letter dated30 November 2020 it stated that MyPay had responded to the first PPI letter of3 August 2020 and had advised that the median income of its employees was "around$80,000.00 per annum. And the average income is around $90,000.00 per annum".MyPay says that despite it having provided INZ with supporting evidence of thoseamounts and other employee information in an Organisational Chart, employeepayslips covering the period July to February 2020, and a relevant IRD document, inits letter INZ stated that it appeared that those documents had not been sent withMyPay's email, and it requested that it be sent the information.[51] MyPay says that these concerns raised by INZ in its 30 November 2020 PPIletter were new and had not been raised previously by INZ. In response to this letterMyPay re-sent the information to INZ attached to an email on 3 December 2020, andthereafter heard nothing further from INZ until it received the INZ letter dated31 January 2021 advising that the application had been reconsidered and declined.More specifically, MyPay says that it was not advised by INZ regarding the existenceof any other concerns it had regarding the application and arising from itsreconsideration of the application.[52] MyPay says however that upon discovery it obtained INZ's internal electronicfile notes (AMS notes) which had not been previously disclosed to it. MyPay notesthat the AMS notes contain comments made by INZ staff, and the existence of three"pop-up" warnings on its file which are displayed whenever the electronic file isaccessed. MyPay notes that there were three warnings recorded on INZ's MyPay filebetween the date on which the application was made and the date it was subsequentlydeclined. It says that the warnings consisted of information that did not relate toMyPay or which did not disclose any non-compliance by it.[53] MyPay says that the warning relating to the 18 May 2018 site visit by INZ staffto office premises occupied by MyPay related to other businesses who MyPay wassharing the same offices with but did not have anything to do with MyPay itself,although all the entities sharing the premises, including MyPay had the same director.MyPay says that the second warning relates to a request made to MyPay for employerfinancial information to assess employer sustainability relating to an application for avariation of visa conditions which had been made by one of MyPay's employees,directly to INZ. The third warning relates to information received by Police throughits telephone "Crime Stoppers" channel. MyPay says the warning relates toinformation received from an anonymous source and it has not been verified and nooffending or misconduct on the part of MyPay has been shown to have occurred.[54] MyPay says that until it learned of the existence of the AMS file notes and thepop-up warnings on the INZ file, it had no knowledge of the warnings and no reasonto suspect that it was or had been the subject of INZ investigations regarding itscommercial operations. MyPay notes that in her affidavit Ms Nicholson-Canningconfirmed that she saw the warnings when she accessed the file during the course ofconducting the reconsideration assessment, but says that although she saw the warningshe did not refer to the verification report which related to the warning and whichstates that the site visit was undertaken in relation to several other businesses: LJCapital Management Ltd; IE Money Ltd; IE Technology Ltd and IE Financial ServicesLtd. The employees interviewed at the premises by INZ staff were not MyPayemployees and the verification report only refers to MyPay as being "[a]lso at thisaddress". However, MyPay submits that by looking into the corporate structure of thegroup of companies who each had the same common director as MyPay, theimmigration officer (Ms Nicholson-Canning) engaged in a process of considering andtaking account of information regarding MyPay that the applicant was not awarewould be considered in relation to its accreditation application.[55] As regards the second AMS file warning which related to INZ's request foremployer information relevant to an employee's application to vary their visa, MyPaysays it was wholly irrelevant to MyPay's accreditation application. In relation to theanonymous "Crime Stoppers" sourced information, MyPay says that the warning itselfstates that the information has not been verified and has not been assessed. Theapplicant says the warning therefore contained no information that could reasonablybe regarded as adverse to MyPay and relevant to INZ's reconsideration of itsapplication. In this regard the applicant notes that INZ's guidelines to its staffregarding the placement of warnings and alerts on its files for border control purposesstates that information that is incomplete or has not been verified should not be placedon the "alert" field of the file as doing so implies that the information is accurate andfactual and can be acted on. MyPay says that although those guidelines apply to bordercontrol matters, the same principle is equally applicable to information placed onINZ's files relating to accreditation and similar applications.[56] MyPay submits that in relation to INZ's reconsideration of its accreditationapplication the key concerns identified by INZ in its initial PPI letter of 3 August 2020,were addressed and satisfied by the information provided by Forest Harrison in itsletter to INZ of 17 August 2020 in which it provided details of its ownership structure.[57] MyPay notes that the current Accredited Employer Regime and Talent(Accredited Employer) Work Visa Scheme has been closed for new applications since31 October 2021, and employers wishing to hire migrant employees are presentlyunable to do so until the new AEWV regime is reactivated on 4 July 2022. Theapplicant says that as a result of its accreditation application being declined its businesshas been severely affected because of its inability to employ staff with highlyspecialised technical and language skills to conduct its technology based financialbusiness in New Zealand.The respondent[58] Mr Paterson for the respondent notes that the accreditation application processis a non-legislative administrative process established by INZ which is provided forby immigration instructions promulgated by INZ. The immigration instructions aretherefore guidelines for both the applicants and INZ officers determining accreditationapplications and they have no legal force. The respondent submits that reconsiderationof an application for accreditation appropriately involves a fresh appraisal of anapplication that has already been determined.[59] The respondent further submits that the reconsideration process provided forin INZ's immigration instructions contemplates a full reconsideration of the originalapplication, and immigration officers conducting the reconsideration are themselvesrequired to be satisfied as regards each of the four criteria contained in WR1.25(c).The respondent says that although "new information" is required to be presented byan applicant seeking reconsideration of a declined application, there is nothing in theguidelines which suggests that an immigration officer carrying out a reconsiderationis limited to addressing the matters engaged by the new information.[60] As regards the warnings on INZ's AMS system, the respondent submits thatthe placement of warnings on the file in order to bring certain matters to the attentionof immigration officers dealing with the file which may affect the risk assessment inrelation to their decision-making is consistent with INZ's statutory function ofmanaging New Zealand's immigration in the national interest and protecting theintegrity of the immigration system.[61] The respondent submits that the existence of the warnings and the reference tothem by the second immigration officer, Ms Nicholson-Canning, when undertakingher reconsideration of the application was not unlawful. Counsel notes Ms Nicholson-Canning has explained in her affidavit that the warnings on the file operate as anotification system relevant to general immigration matters relating to an INZ clientrather than as regards a specific issue or application. She said that there were oftengood reasons why INZ would not disclose the existence of the warnings as a matter ofstandard practice such as the need to protect anonymous sources and informants andwhere their identification could undermine INZ's ability to carry out its function byusing the AMS warning system as an intelligence gathering tool. Here the contents ofthe warning information was not considered to have any material bearing on the issuesarising in relation to the reconsideration or to be potentially prejudicial informationwhich ought to have been disclosed to MyPay. In any event says the respondent,Ms Nicholson-Canning did not access the verification report corresponding to the firstwarning (dated 10 June 2020 regarding the site-visit in May 2018), and that theinformation contained in the warnings did not affect her determination of thereconsideration as while the warning indicated unwillingness on the part of othercorporate entities to provide financial information, MyPay had provided the requestedfinancial information which enabled the immigration officer to carry out theassessment required by the guidelines.[62] The respondent says that INZ's failure to disclose the existence of the warningsto MyPay did not amount to a breach of natural justice. The respondent again notesthat Ms Nicholson-Canning has stated that she did not consider the warnings and theircontents to be material or relevant to her reconsideration of the application, and inthose circumstances there was no necessity for them to be disclosed to the applicant.The respondent submits that having regard to the context of the reconsideration, it wasessentially administrative in nature and came within INZ's core executive function onbehalf of the Crown to control immigration into New Zealand. Moreover the decisiondid not affect the rights or immigration status of any individual, but rather thecommercial interests of MyPay. The respondent submits that in that context therequirements of natural justice did not require the disclosure of the warnings to theapplicant and INZ's failure to do so should not vitiate the decision to decline theapplication following its reconsideration.[63] In response to the applicant's allegation of apparent bias on the part of INZ,the respondent says that the INZ officer making the reconsideration decision wasexercising a quintessentially administrative decision-making power. The respondentnotes that the accreditation application process is a simplifying administrativemodification of the standard visa application assessment and granting process. Theaccredited employer effectively acts as a proxy for INZ's usual visa applicationevaluation and granting process. To ensure the ongoing suitability and compliance ofaccredited employers, accreditation is time-limited to a period of two years,whereupon it must be renewed with a fresh application which satisfies all the requisitecriteria. INZ may also audit an employer to ensure that they continue to meet theaccreditation criteria, and may revoke accreditation where those requirements are notbeing met.[64] The respondent submits that the apparent bias test applicable in this context isappropriately calibrated having regard to the function being performed by INZ inexercising the power and executive prerogative of the New Zealand government todetermine who may enter and stay in New Zealand. The respondent says that whenthe test for bias is considered and calibrated by reference to that context a fair-mindedobserver would not reasonably apprehend that immigration officers would not becapable of bringing an impartial mind to the determination of an application foraccreditation after having viewed the AMS warnings on the MyPay file.[65] In relation to the legitimate expectation ground, the respondent submits thatthe statement made by Ms Nicholson-Canning in her letter of 30 November 2020 inwhich she commented that "the original decision was correct" did not mean that INZwas impliedly promising that it would not reassess the whole of the application againstall four criteria in WR1.25(c) when undertaking a reconsideration of the declinedapplication. The respondent submits that when that phrase is read in context of theletter of 30 November 2020, is it quite clear that the immigration officer was advisingthat the application as a whole would be reconsidered and that the reconsiderationwould not be limited to the respect in which the original application had been foundto be deficient.[66] As regards the applicant's ground of review alleging a breach of duty to actconsistently, the respondent submits that the applicant's submissions misapply theprinciples underpinning the duty to act consistently. The respondent notes that it isnot a duty that requires two different but equally empowered decision makers to makethe same decision for the same reasons in relation to a particular case, but rather a dutythat ensures that the law is applied consistently to all persons so as to achieveconsistency of outcomes. The respondent says that here where the second INZdecision maker, Ms Nicholson-Canning provided a reasoned decision as to why shedeclined the application and why she was not satisfied in respect of certain of therequisite criteria relating to the financial soundness of the applicant, there was nobreach of the duty to act consistently as regards the applicant.[67] In response to the applicant's ground of review alleging error of fact and law,the respondent submits that the applicant has failed to establish an error of law or errorof fact constituting an error of law in the decision making of the immigration officerwho undertook the reconsideration of the application and made the decision to declineit. The respondent submits that as the AMS warnings were not material to thereconsideration of the application and were not taken into account as being relevant tothe decision, the existence of the warnings and the fact that they were known to thedecision maker does not amount to a material mistake of fact such as would constitutean error of law.2[68] And in response to the applicant's ground of review alleging that the decisionmade by Ms Nicholson-Canning to decline the application was unreasonable, therespondent submits that the applicant has failed to show that simply by taking adifferent view than that of the initial immigration officer as to whether the WR1.25(c)criteria were met, the immigration officer's decision was unreasonable. Therespondent says that the decision to decline was made on the basis of a reasonable andjustifiable assessment of the evidence supplied by MyPay and the relevant criteria setout in WR1.25(c), and it was clearly a conclusion and decision that was open to her tomake. The respondent says that the decision to decline the application was not onethat no sensible or reasonable decision maker could have made on the evidence.Judicial review[69] The purpose of judicial review is for the Court to ensure that decision makersmake decisions fairly, reasonably and in accordance with the law. The Supreme Courtin Tannadyce Investments Ltd v Commissioner of Inland Revenue explained:3A central aspect of [the constitutional responsibility of the courts] is to ensurethat when public officials exercise the powers conferred on them byParliament, they act within them. Judicial review is the common law meansby which the courts hold such officials to account. It provides the public withassurance that public officials are acting within the law in exercising theirpowers, and are accountable if they depart from doing so.2 See Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.3 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153 at [3] (footnotes omitted).[70] Judicial review involves an examination of the manner in which the decisionwas made. It is not an appeal on the merits by way of a de novo hearing in which thecourt will make its own assessment and reach its own decision on the matter decided.[71] The immigration instructions in WR1.25 setting out the criteria andrequirements for accreditation have no statutory basis under the Immigration Act 2009.The accreditation process is therefore an administrative process with the immigrationinstructions being promulgated by INZ for the purpose of providing guidelines toapplicants and INZ immigration officers as to the criteria that are required to be metby an applicant seeking accreditation. The immigration instructions not only provideguidance to applicants and INZ officers as to the criteria that will be applied and theprocedures that will be followed, but also ensure that applications will be assessed anddetermined by reference to the same criteria and that applicants are given anopportunity to provide the relevant supporting information before their applicationsare determined. In relation to each of the four stipulated criteria the immigrationinstructions also set out a list of factors which the immigration officer may take intoaccount in determining whether the applicant has satisfied that particular criterion.[72] Guidelines such as those contained in the immigration instructions are not tobe construed with the same strictness as is applied to the interpretation of statutes.They are to be interpreted sensibly and in an "untechnical" way having regard to theirpurpose and the statutory context and function in which they have been promulgated.4Discussion[73] As I noted earlier, at the hearing of this matter Mr Burley advised that theapplication was principally based on the breach of natural justice ground, and thefailure of INZ to disclose the existence of the warnings on its AMS file, with the resultthat MyPay had no knowledge of the warnings and no opportunity to be heard andmake submissions or present any further evidence before either the initial decisiondeclining the application or the subsequent reconsideration decision was made.4 Phillip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at 1023–1024.[74] However, the operative decision which finally determined and declined theaccreditation application was the reconsideration decision made following MyPay'srequest for reconsideration of its application and notified to MyPay in INZ's letter of13 January 2021.5 This was a separate decision by a different immigration officer thanthe one who was responsible for making the first decision declining the applicationdated 23 September 2020. The second immigration officer (Ms Nicholson-Canning)reconsidered the application afresh and addressed all of the evidence which had beenpresented by MyPay in support of its application and assessed the application againstall of the four criteria contained in WR1.25. Having regard to this reconsiderationprocess and the decision made to decline the application that resulted from it, there isno need to determine MyPay's challenge to the first decision dated 23 September 2020,as that decision to decline the application did not finally determine the accreditationapplication.Scope of the reconsideration assessment[75] MyPay submits that INZ's reconsideration of the application was limited to thematters which it had initially assessed as not having been satisfied by the applicant,being the issue identified in INZ's letter of 23 September 2020 in which the decisionto decline the application was notified to the applicant's solicitors. In that letter INZadvised that it was not satisfied that MyPay's application met the requirements ofWR1.25.5(c)(iii) which requires the applicant to demonstrate their commitment totraining and employing New Zealand citizens and residence class visa holders bysatisfying the immigration officer assessing their application that they have madegenuine attempts to recruit New Zealand citizens or residents to fill any vacancies, andthat advertised vacancies accurately reflect the position and salary or wages of theemployment positions they wish to fill. MyPay says that the immigration officer whoundertook the reconsideration of the application was therefore not able to consider thewhole of the application against all of the criteria, and was restricted to the single issueon which the first decision declining the application was based.5 DGN v Auckland District Court [2015] NZHC 3338, [2018] NZAR 137 at [15]; and DGN vAuckland District Court [2017] NZCA 135, [2018] NZAR 137 at [8].[76] In Park v Chief Executive, Department of Labour, Heath J considering s 31 ofthe Immigration Act 1987 which provided for "Reconsideration where application foranother temporary permit is declined", observed:6[17] The term "reconsideration" is not defined in the [Immigration Act1987]. Nor has it been the subject of judicial definition. However, the meaningof the term is clear. The statute avoids the language of "appeal" or "review"and, instead, employs the term "reconsideration". That term plainly envisagesa fresh appraisal of an application that has already been determined.[18] There was no real dispute between [counsel] on the meaning of theterm "reconsideration". I hold that the obligation on the immigration officerconducting the "reconsideration" is to consider afresh the original applicationon the basis of all information provided, including new informationresponding to the grounds upon which the original application was declinedand the grounds for the initial refusal given by the first decision maker.[77] The terms of WR1.25.10 which set out the process and provide for an applicantwhose application has been declined to apply for reconsideration of their application,do not expressly or impliedly limit or restrict the scope of the reconsideration to thosecriteria or matters which INZ considered were not satisfied by the applicant when itwas initially assessed. The natural and ordinary meaning of "reconsideration" meansto consider something again. The matter to be reconsidered is the application foraccreditation which has been declined.[78] While the immigration instructions set out in WR1.25 do not have any legalstatus, they are nevertheless guidelines which are consistent with the purpose of theImmigration Act 2009 as set out in s 3:(1) The purpose of this Act is to manage immigration in a waythat balances the national interest, as determined by the Crown, andthe rights of individuals.(2) To achieve this purpose, the Act establishes an immigrationsystem that—(e) includes mechanisms to ensure that those who engage withthe immigration system comply with its requirements,including mechanisms that—(i) enable immigration officers to gather information inrelation to visa holders, employers, and education6 Park v Chief Executive, Department of Labour HC Auckland CIV 2006-404-1308, 29 May 2006.providers to determine compliance with obligationsin respect of the system; [79] It is also relevant to note that WR1.25.10 provides for an applicant to seekreconsideration of their declined application where new information is promptlyprovided within 14 days of the decision declining the application. The requirementfor "new information" ensures that unless there is further information relevant to theapplication that should be considered, there will be no basis for a reconsideration tobe undertaken. This ensures that applicants are unable to seek repeatedreconsiderations of their applications and waste the time and resources of INZ and itsimmigration officers.[80] The provisions of WR1.25.10 which provide for an applicant for accreditationto seek "reconsideration" of their declined application are consistent with the purposeof the Act. A reconsideration under WR1.25.10 which involves INZ considering thematter afresh in light of all of the information provided by the applicant in support oftheir application and all of the criteria set out in WR1.25(c)(i)–(iv) is consistent withthe objective of ensuring that the applicant who is a party engaging with the NewZealand immigration system satisfies an immigration officer that it complies with theimmigration requirements. It would make no sense whatsoever for an immigrationofficer conducting a reconsideration to be restricted to considering only those mattersupon which the application had previously been declined and in respect of whichfurther information had been provided. Accreditation status is an important andsignificant responsibility conferred on successful applicants, and before accreditationstatus is granted INZ must be satisfied that the applicant meets all four criteria. Thatrequirement applies throughout the entire process by which an application is initiallyassessed and determined, as well as when an application is reconsidered, should thatoccur. Where fresh issues arise in the course of a reconsideration which may result inthe application being declined and which have not previously been identified to theapplicant, the use of the PPI letter process will ensure that applicants are given anopportunity to comment and if necessary provide further relevant informationaddressing those fresh issues.[81] For those reasons I find that INZ and the immigration officer conducting thereconsideration was not precluded from considering the whole of the application andwhether it satisfied all of the criteria set out in WR1.25(c). I accordingly find that theimmigration officer who conducted the reconsideration assessment acted lawfully andmade no error of law by assessing the application by reference to all of the criteria setout in WR1.25(c).The AMS warnings and natural justice obligations[82] The requirements of natural justice are contextual and will vary having regardto the circumstances in which they apply. As explained by Professor Joseph:7"Natural justice is but fairness writ large and juridically." The duty to act fairly(or simply "fairness") may substitute as a reference for natural justice. Theyare alternative descriptions for a single but flexible concept whose content is"always contextual". The requirements vary according to the power that isexercised and the circumstances of its use, including the effect of the decisionon personal rights or interests. A decision may be allowed to stand where abreach of natural justice has little or no effect on the applicant's substantiverights. The requirements of natural justice are "flexible", "adaptable", and"context specific", and cannot be neatly tabulated: "This is an area of broadprinciple, not precise rules". Determining the requirements of natural justice is a holistic exercise. Thecourts will look at the matter "in the round" to determine whether the processwas fair. Higher standards of fair treatment are required where a decision hassignificant consequences, or bears the [hallmarks] of adjudication affectingrights. [83] Brennan J sitting in the High Court of Australia in Kioa v West observed:8A person whose interests are likely to be affected by an exercise of power mustbe given an opportunity to deal with relevant matters adverse to his interestswhich the repository of the power proposes to take into account in decidingupon its exercise The person whose interests are likely to be affected doesnot have to be given an opportunity to comment on every adverse piece ofinformation, irrespective of its credibility, relevance or significance.Administrative decision-making is not to be clogged by inquiries intoallegations to which the repository of the power would not give credence, orwhich are not relevant to his decision or which are of little significance to thedecision which is to be made.[84] The recording of warnings by INZ is wholly consistent with its statutoryfunctions and purpose of managing immigration, gathering information, and ensuringthat those who engage with the New Zealand immigration system comply with its7 Joseph, above n 4, at 1099–1100 (footnotes omitted).8 Kioa v West (1985) 159 CLR 550 at 628.requirements. The obvious purpose of the warnings is to ensure that decisions oractions taken by INZ are not made or taken without the immigration officers carryingout those functions being notified of whatever the information is that has been notedin the warnings in case it may be relevant to the decision they are proposing to make.However, it is clear that information contained in the AMS warnings, or referenced bythe warnings will not necessarily be relevant to decision-making being undertaken byimmigration officers regarding the person or entity on whose file the warning has beenplaced. The evidence here also establishes that there will be instances where thesource of the information justifies keeping the existence of the warning and its contentsconfidential.[85] The information contained withing the three warning notes on INZ's AMSsystem and its MyPay file, was not materially relevant to any of the issues to bedetermined by the immigration officer reconsidering the application. I acceptMs Nicholson-Canning's evidence and account of the use she made of the informationcontained in the three warnings.[86] The Court has been provided with the entire AMS notes, and a review of theinformation recorded in connection with the first warning shows that no informationcontained in the warning notes related to MyPay's financial soundness eitherpositively or negatively. Having reviewed the information related to the warning andhaving ascertained that the information was not relevant to the issues she was deciding,there was no obligation on the immigration officer (or INZ) to notify MyPay of theexistence of the warning.[87] The second warning related to a matter that was also of no relevance orsignificance to the reconsideration process. MyPay was noted as being the employerand supporting company of an individual who had applied for variation of their visaconditions. There was nothing about that issue or in any of the information recordedin relation to that warning which had a bearing on the reconsideration decision.[88] The third warning contained information from an anonymous source receivedby the Police on its "Crime Stoppers" telephone line on 12 October 2020. In whatappears to be a template format, the warning notes state that the information had notbeen verified and it was awaiting assessment, and immigration officers were requestednot to disclose the information as doing so could impact on an investigation orcompliance activity. The warning related to a matter which may or may not havewarranted investigation, and which had not been evaluated or verified.[89] Relying on S v Commissioner of Police, Mr Burley submits that despite thedifference in the severity of the consequences of the warnings between the cases, theprinciples applicable to the disclosure of the warning in S are equally applicable to thewarnings noted on INZ's MyPay file and ought to have been disclosed.9 However, thenature of the warning given by the Police and recorded on their NIA database hadsignificant consequences for the person to whom the warning was given. Here thewarning was not given to MyPay, but was effectively an alert to INZ staff to note thecontents of the information provided with the AMS "warning" when carrying out workin connection with the MyPay file.[90] To summarise: the creation and placement of the warnings on INZ's MyPayAMS file was in accordance with INZ's purposes and statutory responsibilities andnot unlawful. The warnings and such associated information recorded with them hadno bearing on the issues that arose in relation to the reconsideration and having regardto the anonymous and unverified nature of the information there was no obligationupon INZ to disclose it to MyPay in the context of the reconsideration process thenunderway.[91] I accordingly find that the requirements of natural justice were not breachedby the non-disclosure of the existence of the warnings and their contents to MyPayprior to the reconsideration decision being made by Ms Nicholson-Canning and INZto decline MyPay's application.Bias[92] The principles and nature of the rule relating to bias are succinctly explainedby Professor Joseph:109 See S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392.10 Joseph, above n 4, at 1144–1145 (footnotes omitted). no one may judge his or her own cause. The rule against bias isfundamental. It demands impartiality in decision-making in order to do justicebetween parties and maintain public confidence in the administration ofjustice. Lord Hewart's truism is one of the famous axioms of the law:"[J]ustice should not only be done, but should manifestly and undoubtedly beseen to be done.""Bias" is a predisposition resulting from a prejudice or preference towards oneof the parties or their case, or from a personal interest or relationship materialto the case. Under Lord Hewart's axiom, the predisposition may be actual orapparent. A decision-maker may have either an actual bias, or some interest orpreference/prejudice that engenders a reasonable apprehension that it mayinfluence the outcome of the case.The dividing line between permissible and impermissible partiality shifts withthe context. The content of the bias rule is flexible, varying with the factualand legal circumstances of the case. It is at its most demanding when appliedto the judiciary, and at its least demanding when applied to informal, low-leveladministrative bodies. The test for apparent bias reflects the standards andexpectations of the fair-minded lay observer: would the lay observer, havingbeen fully informed of the facts, reasonably suspect that the decision-makermay have been biased? The factual basis of a bias allegation must be carefullymade out. [93] Here MyPay says that the evidence shows that the immigration officers, and inparticular Ms Nicholson-Canning, took the warnings and associated information intoaccount when making the decision to decline the application, and that information"created a baseless negative impression of MyPay in the minds of those officers, andaccordingly, a bias against MyPay in the decision-making process".[94] There is however no evidence to suggest, let alone establish, that theimmigration officer responsible for making the operative decision was biased or thatthere is any appearance of possible bias on her part. The decision which was madewas reasonable and arrived at following a rational analysis of the supportinginformation provided by MyPay and available to the decision maker. Thereconsideration decision-making process was not undertaken until after the applicanthad been given an opportunity to provide all and further supporting information andafter being given an opportunity to respond to the issues of concern identified in thePPI letters. Furthermore, the decision-making process did not occur until after theissue of whether MyPay had in fact provided some further supporting information inresponse to the 30 November 2020 PPI had been satisfactorily resolved and afterMyPay had re-sent the information to INZ for consideration as part of thereconsideration process.[95] The mere fact that the immigration officers, and in particular Ms Nicholson-Canning, were presented with the warnings and viewed their contents would not beenough to cause a fully informed and fair-minded lay observer to suspect the officersof either being actually biased against MyPay, or give rise to apparent bias. That isparticularly so given the evidence of Ms Nicholson-Canning, which I accept, that theinformation contained in the warnings had no bearing on the issues that arose inrelation to the reconsideration application. The applicant is unable to point to anyevidence which would lead a lay observer being fully informed of the facts, toreasonably suspect that the immigration officer's reconsideration decision may havebeen affected by bias.Legitimate expectation & duty to act consistently[96] The applicant says that following the first decision declining its application ithad a legitimate expectation that INZ would thereafter conduct the requestedreconsideration by reference to the sole ground upon which its first decision decliningthe application had been based.[97] For an enforceable legitimate expectation to arise an applicant must show thatthe decision maker made a commitment or promise to proceed with the decision-making process in a certain way or in accordance with a settled practice or policy.There is however no evidence that INZ or the immigration officer responsible for thereconsideration decision made any representation or promise to MyPay to the effectthat it would limit the reconsideration to the matter on which it based its initial decisionto decline the application. As I have earlier explained, there is nothing either expressor implied in the terms of WR1.25 to indicate that a reconsideration under WR1.25.10would be restricted to those issues on which the original decision declining theapplication was based. Furthermore, I note that in the immigration officer's PPI letterof 30 November 2020 she said:While the original decision was correct, based on the new informationprovided with the reconsideration application the reason for the decline nolonger appears valid.Despite the above – I have noted further concerns that were not fully addressedin the initial application for accreditation therefore, these will need to beaddressed fully before a final decision can be made. These concerns areoutlined below [98] In these circumstances it is clear that neither the terms of WR1.25 or anythingsaid or done by INZ's immigration officers in their dealing with MyPay provide anybasis for a legitimate expectation that INZ would not consider any further or otherissues in the course of its reconsideration than the matter upon which it had based itsinitial decision declining the application.[99] The applicant's claim in which it alleges a breach of duty to act consistently ismisconceived. I agree with the respondent that the duty does not require differentdecision makers to reach the same conclusion on the same information, for the samereasons. The duty relates to the obligation on decision makers to treat all parties thesame by reference to the same standards and criteria when making decisions affectingtheir rights and interests. Here the second immigration officer who conducted thereconsideration assessment was not limited to consideration of the sole issue on whichthe first assessment decision was made declining the application. The secondimmigration officer reconsidering the previously declined application considered theadditional information which had been provided by MyPay and reconsidered all of thecriteria in respect of which she was required to be satisfied before it was appropriateto grant the application. There was no obligation upon her to reach the sameconclusion as had been reached by the immigration officer who undertook the firstassessment as regards the criteria that she was required to be satisfied on beforegranting the application.[100] The applicant's claim based on legitimate expectation accordingly fails.Unreasonableness[101] Under this ground of review MyPay says that it is demonstrably unreasonablefor INZ to have reconsidered and declined the application on a basis that hadpreviously been assessed as having been satisfied. MyPay says that no sensibledecision maker with due appreciation of their responsibilities could have arrived atthat decision to decline the application on a basis that had previously been found byINZ to have been satisfied.[102] The Supreme Court in Bryson v Three Foot Six Ltd,11 and citing Edwards(Inspector of Taxes) v Bairstow,12 described an error of law in terms that required theparty challenging the decision to show there to have been no evidence to support thechallenged conclusion, or as a decision in which the evidence is inconsistent with andcontradictory of the determination, or one in which the true and only reasonableconclusion contradicts the determination.[103] In Hu v Immigration and Protection Tribunal, Palmer J said: 13I consider the Supreme Court's established reformulation of the Edwards vBairstow test of when a finding of fact constitutes an error of law offers abetter account of unreasonableness in judicial review than the tautologouswords used in Wednesbury. Where a decision is so insupportable or untenablethat proper application of the law requires a different answer, it is unlawfulbecause it is unreasonable. That may involve the adequacy of the evidentialfoundation of a decision or the chain of logical reasoning in the application ofthe law to the facts. Unremarkably, unreasonableness, also termedirrationality, is to be found in the reasoning supporting a public decision.[104] I find that the applicant has failed to show that the operative decision made byMs Nicholson-Canning to decline the application following her reconsideration of itwas "unreasonable" or "irrational", "insupportable" or "untenable". The decision todecline the application following reconsideration was well supported by evidence andwas entirely rational and consistent with the evidence and information upon which itwas based. The applicant has accordingly failed to establish this ground of itschallenge to the decision declining its application for accreditation.Conclusion and result[105] The applicant has failed to establish any of the grounds upon which it haschallenged the INZ decision dated 13 January 2021 which declined its application foraccreditation under the Talent (Accredited Employer) scheme.11 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].12 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36.13 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].[106] The application for judicial review of INZ's decision declining MyPay'sapplication for accreditation is accordingly declined.[107] The respondent having succeeded in opposing MyPay's application is entitledto an award of costs.[108] Should the parties be unable to agree costs between themselves within fiveworking days from delivery of this judgment, I direct that the respondent is to file andserve its costs memorandum with 10 working days following the date of delivery ofthis judgment. The applicant is directed to file its costs memorandum in reply withinfive working days following service of the respondent's costs memorandum.[109] The costs memoranda of the parties are not to exceed three pages in lengthother than the heading page and any schedules or other annexures relating todisbursements.[110] Upon receipt by the Registrar of the costs memoranda, I shall determine theaward of costs to the respondent on the papers._____________Paul Davison J