SINGH v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3273

SINGH v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3273 [9 December 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-460[2013] NZHC 3273UNDER the Judicature Amendment Act 1972, Part30 of the High Court Rules, and theNew Zealand Bill of Rights Act 1990IN THE MATTER of an application for judicial reviewBETWEEN PARAMJOT SINGHApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 20 November 2013Counsel: M S Smith and N R Woods for ApplicantJ Foster and M F Clark for RespondentJudgment: 9 December 2013JUDGMENT OF GODDARD JThis judgment was delivered by me on 9 December 2013at 4.00 pm, pursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Rowland Woods Legal, Wellington for ApplicantCrown Law Office, Wellington for RespondentIntroduction[1] Mr Singh seeks review of a decision of an officer of Immigration New Zealand (INZ) declining to recognise his employment as "skilled employment",with the consequence that he did not meet the points required to obtain a residence class visa under the policy prescribed in the INZ Operational Manual (the Manual) for skilled migrant category residence.[2] The basis of the application is that INZ's decision in Mr Singh's case wasinconsistent with 18 prior INZ decisions made between 2006 and 2011, in which the same job description undertaken with the same employer and on the same or similarterms was accepted as qualifying as "skilled employment" in terms of the Manual.1[3] The issue in this application for judicial review is whether INZ was entitledto decide the applicant's application inconsistently with those prior INZ decisionsand, if it was, what requirements INZ was required to observe to do that fairly, in light of the principles of natural justice and s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA).[4] The grounds of review as advanced are: breach of legitimate expectation through failure to act consistently and even-handedly; failure to give adequate reasons to the applicant as to why there had been such a fundamental change in approach; and breach of natural justice through failure to disclose internal guidanceon "key indicators" for determining whether a job qualifies as skilled employment.[5] The overarching issue is whether, in declining Mr Singh's residence application, any reviewable error was made in not assessing his employment position as substantially matching the description of retail manager.[6] The respondent does not dispute that the decision declining Mr Singh'sresidence application was inconsistent with up to 18 decisions made prior to1 In 18 prior decisions between 2006 and 2011 (inclusive) INZ accepted that individuals'employment by Black Ink Holdings Ltd as a site manager, retail manager, shop manager, branchmanager, trainee manager at a Z Energy or Shell (as Z Energy's predecessor) gas/service stationin Wellington did qualify as being in "Skilled employment" for the purposes of the skilledmigrant category policy.April 2011. The respondent argues, however, that those previous decisions were incorrectly decided and says that each residence application must be assessed on its merits in terms of the applicable residence instructions at the time. The decision inMr Singh's case was correctly decided in terms of the residence instructions as mandated in decisions of the IPT and the respondent cannot be bound by previous apparently incorrect decisions by its immigration officers. No legitimate expectation can reasonably arise as the statutory duty is to correctly apply the immigration residence instructions. Mr Singh has a right to appeal to the Immigration Protection Tribunal (IPT) if he wishes. Nor was there any failure to disclose prejudicial information to Mr Singh in the course of deciding and declining his residence application.Background facts[7] Mr Singh moved to Wellington in June 2008, following the grant of a student visa, to study for a diploma in management. He completed his studies in July 2009, receiving an NZQA-recognised Diploma in Management. During the period of his study, Mr Singh worked part-time with Shell, now Z Energy. After finishing his studies, he was granted a job search visa, valid until July 2010. In early July he began full-time work for Shell under the employment of Black Ink Holdings Ltd, starting as a night supervisor before being promoted to assistant manager, to training site manager and then, in May 2011, to full site manager.[8] After consulting with an immigration advisor and being advised that his particular employment position should qualify him for residence as a skilled migrant, based on the current approach by INZ, Mr Singh completed an expression of interest form to begin the process of applying for residence under the skilled migrant category. This was on 3 June 2011. The skilled migrant category is based on a points-based system. The assessment of whether an occupation is skilled is primarily based on the Australian and New Zealand Standard Classification of Occupation (ANZSCO), which provides an outline of the tasks associated with each identified occupation and sets a skill level for each occupation on a scale from 1 (the highest) to 5 (the lowest). The occupation of retail manager, along with other listed managerial roles, is skill level 2.[9] Acceptance of an application as coming within the skilled migrant category requires a minimum of 140 points. In his Expression of Interest, Mr Singh claimed a total of 165 points, including 50 points for "Employment" based on his site managerposition at the Shell Service Station in Johnsonville. On the basis of the points claimed by Mr Singh, he was invited by INZ to submit an application for residency as a skilled migrant, which he did on 4 August 2011.[10] On 14 March 2012, INZ wrote to Mr Singh informing him that his application had been assessed and that the view had been formed that he could only be awarded 105 points, not the 165 points he had claimed. This was because his site manager position was said to not substantially match the ANZSCO description of retail manager. Therefore he was ineligible for the 50 points he had claimed for the"Employment" category.[11] Mr Singh was given the opportunity to submit further information in support of his application by the end of March 2012. In addition, in April 2012, Mr Singh'semployer, Black Ink Holdings, provided further information regarding his role.[12] On 3 July 2012, INZ advised Mr Singh his residence application was declined as, after considering the further information and all evidence on the file, no points could be awarded for skilled employment, as his site manager position did not qualify as such under the relevant immigration instructions. In the assessment it was explained to Mr Singh that, while some of the job tasks he undertook were similar tothose of a retail manager, "you are not organising and controlling the operations ofthe establishment. Rather you are implementing standards and procedures according to guidelines that have been developed by the 'Z' head office".[13] INZ was asked to reconsider its decision and subsequently agreed to carry outa reassessment of Mr Singh's application.[14] On 23 August 2012, the immigration officer responsible for the reassessment wrote to Black Ink Holdings to ensure the information on file was current and requesting further information regarding Mr Singh's employment and aboutZ Energy. This included information about the Black Ink Holdings franchise agreement.[15] On 12 October 2012, INZ advised Mr Singh of its provisional decision that his site manager position did not meet the requirements of skilled employment under the Immigration Instructions. I will return to the reasons given for the assessment at a later point in the judgment.[16] Essentially, Mr Singh was advised that his site manager position did notsubstantially match the ANZSCO description of "Retail Manager", given he onlyhad responsibility for three of the eight tasks listed in that description. However, Mr Singh was advised that he had an opportunity to submit further information, which he did through his solicitor on 12 November 2012. In his letter to INZ on behalf of Mr Singh, the solicitor highlighted the following concerns:It appears that in the Wellington region the position of gas/service station manager within the overall structure of a large national fuel and energy retailing organisation was until recently regarded as being generally consistent with the requirements of the Skilled Migrant Category. It is understood that over the last three years approximately 12 applications for residence under the SMC have been received from persons holding such positions, and it is understood that all twelve were apparently approved on the basis that the position of retail manager within the organisation was a qualifying occupation under the SMC.Although there has been no publication or explanation of any changes in policy or its interpretation or application by Immigration New Zealand, recent applications from persons holding these positions are being questioned by Immigration Officers, in an apparent attempt to subvert the status of these positions as being consistent with the SMC. It is submitted that these attempt to re-interpret policy contravene the natural justice principles of procedural fairness and legitimate expectation. ...Since coming to New Zealand Mr Singh has plotted his career very carefully. He read and responded to the signals of the New Zealand government before embarking on a tertiary educational course aimed at providing him with entry into a career in management. He succeeded in obtaining his tertiary qualification and now he has succeeded in securing a hold on the first rung of the management ladder – a position as retail manager in a major, nation-wide fuel and energy retailing organisation. He is achieving exactly what both student policy and SMC policy were established to do, namely to help young people who can demonstrate a real potential to contribute to New Zealand society to establish themselves in the community. ...It is submitted that Mr Singh meets all the criteria governing the objectives of the SMC policy. More specifically, the position of Retail Manager whichhe now occupies is a genuine management position within a reputable national organisation, intended as a first progression up the management ladder. On this basis, his application for residence, like that of other colleagues holding similar positions, should be approved.[17] Notwithstanding, on 26 February 2013, INZ wrote to Mr Singh advising that his application had been declined on the grounds that his site manager position did not qualify as a skilled employment job. In relation to the matters raised by Mr Singh's solicitor, and in particular in relation to the apparent change in approach,the following advice was given by INZ:It should be noted that Immigration Officers are bound to assess each application against the requirements of immigration instructions. While we can consider information gained through assessment of previous similar cases, every application must be assessed on its own merits, against the requirements of Immigration NZ instructions, which has been undertaken in this case.[18] Following INZ's final decision to decline his application, Mr Singh soughtinformation under the Official Information Act 1982, as he was concerned at the apparent inconsistency in the decision to decline his application compared with previous decisions of the INZ accepting his role as within the skilled category of the ANZSCO definition. The response from INZ was in the following terms:In regard to your first request, Immigration New Zealand confirms it has accepted, in previous applications, that employment as a gas/service stationmanager at "Z" Energy Ltd franchises (and its predecessor, Shell) inWellington met the (skilled employment) requirements for skilled employment under the Skilled Migrant category. In this regard, INZ advises that it has previously assessed the job titles of Site Manager; Trainee Manager; Manager; Shop Manager, and Retail Site Manager as substantially matching a skilled occupation as set out in ANZSCO or NZSCO.Legislative scheme[19] Section 72 of the Immigration Act 2009 (the Act) provides for decisions on applications for residence class visas to be made in terms of the residence instructions applicable at the time the application is made.2 Decisions at first instance are made by an immigration officer in the exercise of his or her discretion and in terms of the applicable residence instructions. However, the Minister has an2 Immigration Act 2009, s 72(1).absolute discretion to grant residence as an exception to the applicable residence instructions.3[20] Section 22 of the Act provides for immigration instructions. These are statements of government policy rather than regulations. They do not have the status of legislation. As the Court of Appeal noted in Patel v Chief Executive of the Department of Labour:4[Government policy ] ... is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.[21] Immigration instructions must be published and this is done via the Manual.5[22] In the overview to the "Skilled Migrant Category" subsection of the Manual,immigration officers are inter alia directed that:(l) Applications will be assessed against instructions set out in sections SM4 to SM21 of the Skilled Migrant Category.(m) Principal applicants under the Skilled Migrant Category will be assessed against:...(ii) employability and capacity building requirements; ...[23] The most relevant part of the Manual for the purposes of this judicial reviewproceedings are SM7.5 "Points for skilled employment" and SM7.10 "Skilled Employment". SM7.10(b) provides that assessment of whether an occupation isskilled for the purposes of the Skilled Migrant Category (SMC) is primarily based onthe ANZSCO "which associates skill levels with each occupation".3 Section 72(3).4 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.5 Immigration Act 2009, s 25.[24] SM7.10.1, providing for the assessment of whether employment is skilled, provides that current employment in New Zealand will be assessed as skilled if it meets the following requirement:(a) The occupation is included in part A of the List of Skilled Occupations held at Appendix 6 and the principal applicant can demonstrate that their offer of employment or current employment substantially matches the description for that occupation (including core tasks) as set out in the ANZSCO and: ...[25] The occupations in Part A of Appendix 6 of the Manual, referred to in cl SM7.10.1 above, include "142111 Retail Manager". ANZSCO defines thatoccupation as follows:UNIT GROUP 1421 RETAIL MANAGERSRETAIL MAANGERS organise and control the operations of establishments which provide retail services.Indicative Skill Level:Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below....In New Zealand:NZ Register Diploma (ANZSCO Skill Level 2)At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.Registration or licensing may be required.Tasks Include:determining product mix, stock levels and service standardsformulating and implementing purchasing and marketing policies, and setting pricespromoting and advertising the establishment's goods and servicesselling goods and services to customers and advising them on product usemaintaining records of stock levels and financial transactionsundertaking budgeting for the establishmentcontrolling selection, training and supervision of staffensuring compliance with occupational health and safety regulationsOccupations:142111 Retail Manager (General)142112 Antique Dealer142113 Betting Agency Manager142114 Hair or Beauty Salon Manager142115 Post Office Manager142116 Travel Agency Manager142111 RETAIL MANAGER (GENERAL)Alternative Titles:Retail Store ManagerShop ManagerOrganises and controls the operations of a retail trading establishment.Why the respondent changed its approach in Mr Singh's case[26] The respondent's response to Mr Singh's plea of legitimate expectation tohave his situation assessed consistently with previous decisions of INZ is based on an apparent realisation by INZ that its approach, up until the time at which Mr Singh's application was assessed, was not legally correct. In stating this, INZ acknowledges that its assessment of Mr Singh's application was inconsistent with upto 18 decisions made prior to April 2011 concerning employees of Black Ink Holdings Ltd, whose managerial roles at Wellington service stations were accepted as substantially matching the description of retail manager in ANZSCO.[27] However, INZ says these previous inconsistent decisions "are likely to have been wrongly decided" and since that time, namely between February and July 2013,six petrol station managers in the Wellington region who sought residence based on similar employment have also been declined.[28] The genesis of this change in approach was an inquiry by the Auditor General in 2009, which apparently found excessive variation between INZ offices. Subsequently, in 2012, inconsistencies and inadequate assessments of applicants'employment as substantially matching the description for management occupationsin ANZSCO were identified. Some of these applications "had wrongly been approved". The process of identifying these "wrong" decisions was informed byappeal decisions of the IPT in 2011/2012 involving the same categories, and in which applicants had unsuccessfully appealed decisions of immigration officers declining approval.[29] An Internal Administration Circular No: 12/05 was issued on 21 August 2012, intended to ensure better consistency and quality of decision-making in the assessment of these ANZSCO management occupations. The issuing of this circular did not, however, represent a change in policy; the circular is not part of the immigration instructions; and the circular itself specifically states that it is not a substitute for existing policy. Thus, the issuing of the circular did not alter policy and the same immigration instructions, in particular the description for the occupation of retail manager, continue to apply as they did when Mr Singh made his application on 4 August 2011; and again when his application was declined on the first consideration on 3 July 2012. Further, the respondent says, these events occurred prior to the issuing of the circular.[30] The circular has provided a better understanding amongst immigrationofficers as to how to apply the policy properly "as affirmed by the IPT"; and, whileconsistency is an important factor, future applications cannot continue to be decided incorrectly. The nature of the statutory scheme is such that immigration officers cannot be constrained by previous incorrect decision-making.[31] I have set out in the footnote below a synopsis of decisions of the IPT provided by INZ as containing the relevant and appropriate guidance it says should be applied in deciding future applications.6 I note that the IPT's decision in DS (Skilled Migrant) relevantly related to applications by managers of franchise operations and centred on an application from a manager of the same franchise based on a previous successful application by a manager of the same franchise.6 In DS (Skilled Migrant) [2011] NZIPT 200140 the appellant submitted there had been unfairness in the assessment of his application due to a lack of consistency in decision-making. This was in terms of both a general trend in approvals for managers of franchise operations and a specificsuccessful application from another manager of the same franchise. The IPT held that: "INZmust assess each case against the relevant policy in terms of the facts and circumstances of thepresenting case, it has no discretion to do otherwise" (at [30]). The IPT went on to note that the INZ must keep an open mind to all relevant information presented by the applicant, including information about similar cases. However, it noted the possibility that the other case may not have been correctly determined, concluding that this was not an issue relevant to INZ'sassessment in this particular case. In Residence Appeal No: 16370 [2010] NZRRB 49, the appellant claimed that INZ was bound by policy concerning consistency in decision-making to find the appellant was in skilled employment because another skilled migrant applicant who managed a small retail outlet had been awarded points for skilled employment. The IPTconsidered that "each case must be assessed on its merits and consistency in decision-making is but one aspect of a procedurally fair assessment: it is not a factor of itself which automaticallyoverrides all other aspects of an assessment" (at [53]).Legitimate expectation[32] It was common ground between the parties that the relevant principles governing legitimate expectation were most recently and authoritatively expressed inThe Comptroller of Customs v Terminals (NZ) Limited.7 The following passages from the judgment of the Court of Appeal was referred to and relied upon:The concept of legitimate expectation may be viewed as an aspect of the administrative law principle that requires governments and public authorities to act fairly and reasonably. The general principle was formulated by the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu: when a public authority has promised to follow a certainprocedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as it does not interfere with its statutory duty.This general principle was affirmed by the Privy Council more recently inNew Zealand Maori Council v Attorney-General but with the qualification that a successful challenge to an assurance of this type would depend in parton whether there was any "satisfactory reason" for the Crown not to complywith it.Establishing a legitimate expectation in administrative law is not dependent on the existence of a legal right to the benefit or relief sought. The expectation might be engendered by promises that a particular authority will act in a certain way or by the adoption of a settled practice or policy which the claimant can reasonably expect to continue. A promise of the kind alleged may be express or implied.Legitimate expectation is to be distinguished from a mere hope that a cause of action will be pursued or a particular outcome gained.To amount to a legitimate expectation, it must, in the circumstances (including the nature of the decision making power and of the affected interest) be reasonable for the affected person to rely on the expectation.Where legitimate expectation is raised, the inquiry generally has three steps. The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.The second is to determine whether the plaintiff's reliance on the promise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.7 The Comptroller of Customs v Terminals (NZ) Limited [2012] NZCA 598 at [121]-[127] (footnotes omitted).The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established[33] The Court also referred to the approach to legitimate expectation in tax cases as described by Bingham LJ in R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd:8Every ordinarily sophisticated taxpayer knows that the revenue is a taxcollecting agency not a tax-imposing authority. The taxpayers' only legitimate expectation is, prima facie, that he will be taxed according to statute, not concession or a wrong view of the law [34] Later in the judgment, the Court commented:9Where a legitimate expectation is established, the Court may require the decision maker to follow a process that he or she has expressly or impliedly undertaken to follow. Examples include an obligation to give notice to an affected party or to consult before making a decision. In other cases, the court may direct the decision maker to reconsider the decision in the light of the expectation. However, relief in the form of a substantive outcome is rarely, if ever, granted. To do so would be to usurp the function of the person or body carrying out the relevant public function.Breach of legitimate expectation?[35] Mr Smith argued that the 18 decisions INZ had made concerning the same occupation of site manager at a Z Energy service station prior to considering Mr Singh's residence application amounted to a "settled practice or policy" ofaccepting that this occupation qualified as skilled employment for the purposes of skilled migrant category residence applications.[36] Alternatively, he argued, those 18 prior decisions, read alongside theundertaking in the Manual to decide residence applications "in a way that is consistent with other decisions", constituted an implied assurance that Mr Singh'ssite manager role would similarly qualify as skilled employment.[37] On either basis, Mr Smith said, a commitment by INZ through settled practice or policy, or through an undertaking to make consistent decisions, satisfied8 At [131] (footnotes omitted)9 At [155] (footnotes omitted).the first step in the test outlined by the Court of Appeal in Comptroller of Customs vTerminals.[38] In relation to the second step outlined by the Court of Appeal, Mr Smith submitted that Mr Singh had relied on INZ's prior decisions as a commitment to treathis application in the same manner; and that his reasonable and legitimate reliance on this had been to his detriment. In this regard, Mr Singh has expended a not insubstantial amount of money on immigration advice, x-rays, clearances by police and other requisite agencies and has paid the $1,550.00 application fee. In addition, there is the attendant stress and anguish occasioned on learning of a seemingly arbitrary change in decision-making policy, as well as deep disappointment in having his application ultimately declined. There is also the critical aspect of his future uncertainty over now achieving residency or being liable to removal if his temporary visas are not renewed.[39] A related submission made by Mr Smith in respect of the second step to establishing legitimate expectation was the issue of retrospectivity. In this regard, Mr Smith was referring to the fact that Mr Singh's application was made and firstconsidered at a time when the previous practice or policy was being consistently applied, at least in the Wellington region. In the absence of any safeguard of transitional provisions to ensure that no hardship occurred from a change in an interpretative approach, no change in practice or policy should have been retrospectively applied to his application. In other words, Mr Smith said, theapplicable approach in Mr Singh's case should have been that pertaining on the date on which he made his application. Furthermore, the new circular was not specifically notified to Mr Singh or his advisers. In any event there is no substantial difference between the new circular and the old one. However, if the older circular were more favourable to Mr Singh he should have been entitled to the benefit of it as operative at the time he made his application. Under s 72, applications are to be decided on the policy applicable at the time an application is first lodged.[40] A further and related submission was that the IPT decision referred to and relied on by INZ in its 21 August 2012 Internal Administration Circular was not onall fours with the substance of Mr Singh's application, as it involved a differentemployer, a different franchisor, and was in a different geographic area (Auckland).[41] A further and related submission by Mr Smith was that enforcing Mr Singh'sparticular legitimate expectation would not undermine the Act, as the Manual explicitly envisages like decisions being decided alike, and this is reinforced by ss 6 and 27(1) of NZBORA and by common law natural justice.[42] A further submission was that, notwithstanding the right of appeal to the IPT under the Act, the Act explicitly provides for judicial review of residence visa decisions and, in any event, it is unclear whether an inconsistency of treatment challenge of this kind could be brought in the IPT, given the limits to what evidence is admissible before the IPT.[43] Turning to the third step for establishing legitimate expectation as outlined by the Court of Appeal, Mr Smith submitted that, as in R (o.a.o. Patel) v General Medical Council, this Court should find that INZ is "compelled" by its previous decisions to recognise Mr Singh's particular occupation as a skilled employmentposition for residence visa purposes.10 Mr Smith said this is a procedural rather than a substantive outcome, and recognises the principle that changes in approach are to be applied prospectively and not retrospectively.[44] Mr Smith also sought an ancillary order for Mr Singh's application to bereferred back to INZ for reconsideration. This order was sought in recognition that the remedy could not of itself grant a substantive benefit (namely residence) but is merely one step along the way to residency.[45] On behalf of the respondent, Ms Foster emphasised that INZ officers cannot be constrained by previous incorrect decision making just to ensure consistency. The only legitimate expectation an applicant can have is to have his application decided according to statute, not according to a wrong view of the law. Finding such an expectation would override the statutory scheme and the purpose of the skilled migrant category.10 R (o.a.o. Patel) v General Medical Council [2013] EWCA Civ 327.[46] She further submitted that any detriment arising in Mr Singh's case did notconstitute a satisfactory reason to override the statutory duty under s 72 to decide in accordance with instructions.[47] In summary, she said, there could be no legitimate expectation as contended for; only the hope of a successful application.Failure to give reasons[48] An error of law may be found where there was an unreasonable finding of fact, inadequacy of reasons, or a failure to make a finding of fact on a key issue for decision: see Edwards v Bairstow;11 and Madlener v Lester.12[49] In Chan v Minister of Immigration, Barker J in the High Court said:13Counsel referred me to other judicial statements concerning the sufficiency of the reasons supplied by a decision-maker where there is a statutory requirement to give reasons.For example; (a) The duty to give reasons is a responsible one and cannot be discharged by the use of vague general words (Elliott v London Borough of Southwark (1976) 2 All E.R. 781, 791). (b) The reasons must "grapple" with the important issues raised. R v Mental Health Review Tribunal Ex Parte Pickering, (1986) 1 All E.R. 99, 102.Was there a failure to give adequate reasons?[50] Mr Smith argued there had been a failure by INZ to give adequate reasons for its decision in Mr Singh's case, by not explaining why its previous decisions did not apply to him. There had only been brief reference to this in the final decision by wayof a generalised 'boiler plate' paragraph cut and pasted in from the circular, and that was insufficient. The failure in this regard was reflective of a failure to genuinely consider mandatory considerations and a failure to ask the right legal question. There had been an attempt to backfill reasons after the event.[51] In response Ms Foster argued that INZ did consider the relevance of its previous decisions, and although a previous application based on similar11 Edwards v Bairstow [1956] AC 14 (HL).12 Madlener v Lester HC Christchurch CP263/91, 31 July 1996.13 Chan v Minister of Immigration HC Auckland CP80/89, 8 May 1989 at 16.employment may have been approved, whether the employment in a particular case is a substantial match must be assessed on a case-by-case basis; and INZ are required to consider the employment in question holistically, taking into account the core tasks, which in practice means considering the scope and scale of the organisation and operation. Centralisation of many core management functions may result in a downgrading of the managerial responsibility held.[52] No further consideration was required nor further reasons, as the reasons that were given sufficiently explained the limited reference of the previous decisions.Non-disclosure of relevant information[53] In Secretary for Justice v Simes, the Court of Appeal said:14Natural justice requires the disclosure of material the decision maker intends to take into account so that the party or parties affected have the opportunity of rebutting material that may be considered adverse and taking advantage of matters that may be considered favourable to that party.Was there material non-disclosure?[54] In correspondence between Mr Singh's advisers and INZ, INZ disclosed in anemail that there are certain core tasks that are key indicators of whether employment will be assessed as skilled or not. Core tasks that could be performed by another member of staff are not key indicators. Mr Smith submitted that INZ should have disclosed this information. If Mr Singh had known of this, he would have tailored his application accordingly. The failure to provide this information was in breach of the Manual and s 27(1) NZBORA.[55] In response, Ms Foster submitted that Mr Singh was given this information in the letter of 12 October 2012 which set out why his employment did not meet the description. This was because INZ were not satisfied he was responsible for four tasks that were central to the level of responsibility required by a retail manager. Further, Ms Foster said, it is not clear how Mr Singh could have tailored his application in any event.14 Secretary for Justice v Simes [2012] NZCA 459 at [80].Discussion[56] There are two aspects of Mr Singh's case that require focus. The first is hislegitimate expectation based on the experience of fellow employees of Black Ink Holdings Ltd, who enjoyed success in their applications for assessment as skilled migrants for undertaking the same or similar roles as Mr Singh. The second aspect is that of retrospectivity.[57] It is trite that decision-makers have a common law duty to act consistently, which in practical terms requires them to treat like cases alike. This is an essential element of the rule of law and is linked to fairness. This common law duty to act consistently is reflected in the Manual and its express requirement for immigration officers to decide applications consistently with other decisions. In terms of retrospectivity, s 72 of the Act requires this consistency to be in terms of theresidence instructions applicable at the time "the application is made".[58] Mr Singh's situation is indeed unfortunate and, measured against the 18 priordecisions involving the same or similar occupations, seems manifestly unfair. However, that does not render the decision in his case incorrect or contrary to the policy applicable at the time. The nub of the issue is whether the residenceinstructions (policy) applicable at the time Mr Singh's application was made haschanged, or whether the application of those instructions/policy was being incorrectly applied by immigration officers in one region. The latter appears to be situation in this case.[59] Regularising an errant approach by some decision-makers by means of guidelines issued in the form of a circular, does not render future decision-making arbitrary, unfair or unlawful.[60] It must be accepted that the Internal Administration Circular No 12/05 issued on 21 August 2012 was intended to ensure better consistency and quality of decision-making in the assessment of ANSCO management occupations; not to introduce a departure from applicable policy or to unfairly impose a new policy.[61] Mr Singh is therefore the victim of apparently aberrant decision-making in the Wellington region which was to the advantage of 18 of his fellow employees and to the considerable advantage of Black Ink Holdings Ltd.[62] Mr Singh has not altered his position, however; he has simply failed to obtain the residency status that he sought. In making that statement I do not in any way minimise the loss to Mr Singh in terms of personal disappointment and wasted expenditure in making an application that, at the time, seemed to both him and his advisers to be an absolute certainty. He certainly had every expectation of success;just not a 'legitimate' expectation, once all the circumstances were known.[63] In conclusion on this ground of review, I find the issuing of the Circular on 21 August 2012 did not represent a change in policy; that the circular is not part of the immigration instructions; and note that the circular itself specifically states that it is not a substitute for existing policy. The same immigration instructions, in particular the description for the occupation of retail manager, therefore continued to apply when Mr Singh made his application on 4 August 2011; and again when his application was declined on the first consideration on 3 July 2012.[64] Despite Mr Smith's careful and learned argument, I am therefore unable tofind that the fundamental aspects of legitimate expectation of consistent decision-making are made out here. Nor can the related aspect of retrospectivity succeed and the first ground of review must fail.[65] In relation to whether adequate reasons were given, a reading of the final decision of 26 February 2013 establishes that, while it is somewhat rudimentary, it does cover the issues raised by Mr Singh through his advisers and responds to them sufficiently and in terms that are understandable. While not a sophisticated decision, it does cover the issues and provides explanations as to why various criteria of theANZSCO are not accepted as made out in Mr Singh's case.[66] In relation to the adequacy of the information supplied to Mr Singh and his advisers; namely that there are certain core tasks that are key indicators of whether employment will be assessed as skilled or not, I accept Ms Foster's submission thatMr Singh was given this information in the letter of 12 October 2012 and her further submission that, in any event, it is not clear how Mr Singh could have tailored his application accordingly.[67] The second and third grounds of review must also fail.Remedies[68] Although I have not found any of the grounds of review made out to theextent required, there are unsatisfactory features of this case and Mr Singh's situationcan rightly be regarded as most unfortunate.[69] Clearly there cannot be an order from the Court compelling INZ to reassess his application and accept it as qualifying as skilled employment in terms of theManual and the ANZSCO criteria. Contrary to Mr Smith's submission, that would amount to providing relief in the form of a substantive outcome. However, Mr Singh did have justifiable expectations based on a line of decision-making by INZ that indicated a settled policy, notwithstanding that I have found his expectations cannotbe categorised as 'legitimate' in the legal sense.[70] In terms of the ancillary order sought by Mr Smith for Mr Singh's application to be referred back to INZ for reconsideration, in light of Mr Singh's expectations, Isee this as a futile exercise. INZ would be bound to re-decide his application in the same terms as in the final decision of 26 February 2013. That is clear from all of the background material culminating in the Circular of 21 August 2012, issued for the purpose of ensuring future consistency of approach in conformity with the applicable residence instructions.[71] However, in my view, it should be open for the IPT, should Mr Singh pursue his appeal, to regard his situation as exceptional and to make a recommendation to the Minister accordingly. Such a recommendation would not set a precedent forcases that have followed Mr Singh's and which have been similarly declined. Itwould, however, recognise the seeming unfairness of his particular situation and the shock and disappointment of the decision in his case.Costs[72] Mr Singh sought costs on a 2B basis, even if the Court were to dismiss his application for review.[73] For the respondent, Ms Foster advised that INZ does not seek costs and submitted they should lie where they fall.[74] Given the unfortunate features of Mr Singh's case and the validity of thejudicial review application brought on his behalf, I deem it appropriate to award costs in his favour on a 2B basis.Goddard J