GALANI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 383

GALANI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT[2018] NZHC 383 [12 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2171[2018] NZHC 383UNDER the Judicature Amendment Act 1972 and theJudicial Review Procedure Act 2016IN THE MATTER of an application for judicial review under s4 of the Judicature Amendment Act 1972BETWEEN SRICHAND GALANIApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS INNOVATION ANDEMPLOYMENTRespondentHearing: 2 March 2018Appearances: A Ayoub and T Choudhury for ApplicantK G Stephen and M G A Madden for RespondentJudgment: 12 March 2018JUDGMENT OF LANG J[on application for judicial review]This judgment was delivered by me on12 March 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Galani came to New Zealand in 2016 on a two-stage Entrepreneur WorkVisa. At the conclusion of the first stage, a Business Immigration Specialist (theSpecialist) employed by Immigration New Zealand concluded Mr Galani had not metthe threshold requirements enabling him to progress to the second stage. This resultedin the expiry of Mr Galani's visa. He is now required to leave New Zealand voluntarilyor face deportation.[2] Mr Galani seeks judicial review of the Specialist's decision. His statement ofclaim contends the decision was "erroneous", and that the Specialist "did not considerthe totality of the evidence" presented on Mr Galani's behalf and/or "did not placeenough weight on said evidence". Mr Galani also contends the Specialist's decisionis unreasonable.The statutory scheme[3] An Entrepreneur Work Visa provides a person entering New Zealand with atemporary entry class visa that is potentially valid for up to three years. The visapermits the holder to be self-employed in New Zealand, and is subject to conditionsin the form of immigration instructions (the Instructions) certified by the Minister ofImmigration under s 22 of the Immigration Act 2009 (the Act).1[4] The Instructions record the objective of the visa scheme as follows:BB1 ObjectiveThe objective of this category is to contribute to economic growth by enablingexperienced business people to grow or establish high growth and innovativebusinesses with export potential in New Zealand.[5] The visa permits the holder to reside in New Zealand for an initial period of12 months (the start-up stage). During this period, the holder is required to takereasonable steps to establish a business in New Zealand using funds transferred fromoverseas. The proposed business, and the funds required to set up the business, arespecified in a business plan submitted by the applicant when he or she applies for the1 The immigration instructions form part of the conditions of the visa by operation of law:Immigration Act 2009, s 49(1)(c). They are published in the Immigration New ZealandOperational Manual.visa. If the visa holder fails to meet specified requirements before the conclusion ofthe start-up stage, the visa will expire. If the visa holder meets those requirements, thevisa will remain valid for a further two year period.[6] In order to obtain a visa of this type the applicant must demonstrate to thesatisfaction of a Specialist that he or she will provide a minimum capital investmentof $100,000, unless that requirement is waived.2 The applicant must also nominatefunds and/or assets equivalent in value to the total capital investment identified in thebusiness plan, and demonstrate both that he or she is the owner of the funds or assetsand that they have been earned or acquired legally.3 The applicant must also provideevidence to satisfy the Specialist that, in addition to investment capital, he or she hassufficient funds to support the applicant and any dependents who will be travelling toNew Zealand.4[7] The Instructions relevantly describe the steps the applicant must take towardsthe end of the first stage as follows:BB4.5 Requirements at the end of the Entrepreneur Start-Up stagea. Towards the end of the Entrepreneur Start-Up stage, the holder mustprovide evidence to satisfy a business immigration specialist that:i. the investment capital for the proposed business, as stated in thebusiness plan, has been transferred directly from the holder'sbank account(s) through the banking system to New Zealand;andii. reasonable steps have been taken to establish or invest in thebusiness as set out in the business plan.[8] The Instructions then go on to provide the means by which the applicant mayestablish these matters:BB4.5.1 Evidence of reasonable steps taken to establish and operate abusinessa. Evidence of transferring investment capital to New Zealand throughthe banking system may include but is not limited to:2 Immigration New Zealand Operational Manual, BB3.1(a).3 BB3.5(b).4 BB3.1(g).i. telegraphic transfer formsii. bank statementsiii. other documents, evidence and information the businessimmigration specialist considers may demonstrate the transferof investment capital to New Zealand through the bankingsystem.b. Evidence of reasonable steps taken to establish and operate a businessmay include but is not limited to:i. documents evidencing the constitution of the business (e.g.certificate of incorporation)ii. audited accountsiii. GST recordsiv. other tax recordsv. property purchase or lease documents relating to the business'sitevi. invoices for business equipment and suppliesvii. other documents, evidence and information a businessimmigration specialist considers may demonstrate reasonablesteps taken to establish or invest in a business (e.g. employmentagreements, bank statements, utility company invoices, salesagreements, contracts to provide products or services).This case[9] Mr Galani applied for an Entrepreneur Work Visa in October 2015. In supportof his application he filed a business plan, written submissions and otherdocumentation. He proposed to establish a business involving the subdivision ofsections to create additional housing in the Auckland area. This would require a capitalinvestment of at least $1 million. These funds were to be transferred into his businessbank account in New Zealand from a bank account held in his name with the NBDBank in the United Arab Emirates (UAE). Mr Galani said he would be working fulltime in the business, and that the business would employ one other person for at least30 hours per week.[10] Mr Galani was granted an Entrepreneur Work Visa on 29 April 2016 for aninitial period of 12 months. On 26 April 2017, Mr Galani's lawyers applied on hisbehalf to progress the visa for a further two year period. The solicitors provided theSpecialist with a range of documents in support of the application. The Specialist andMr Galani's solicitors then engaged in further correspondence in which the Specialistsought further information about the funds Mr Galani had transferred to New Zealandand about progress in the property development project.[11] On 25 August 2017, the Specialist decided Mr Galani had not providedsufficient evidence to establish the requirements to enable him to remain in NewZealand for a further two year period. The Specialist reached this decision for tworeasons:(a) Mr Galani had not transferred funds to New Zealand from hisnominated bank account in the UAE. Instead, he had transferred fundstotalling more than $1 million to his New Zealand business accountfrom two other bank accounts outside New Zealand. The Specialistconcluded there was insufficient evidence to establish that these werethe funds nominated in the application for a visa. As a result, theSpecialist could not consider whether Mr Galani had beneficialownership of the funds and/or whether they had been acquired legally.(b) The Specialist concluded that the employee of Mr Galani's company inNew Zealand did not appear to be working the number of hours statedin the employment agreement. The Specialist also concluded thatMr Galani was not working full time in his business and that neither ofthe two subdivisions that he had commenced appeared to haveappropriate regulatory consents to enable the construction of dwellingsto begin. She therefore concluded he had not taken reasonable steps toestablish his business within the start-up stage.The proposed grounds of review[12] There are obvious difficulties with Mr Galani's first ground of review, namelythat the Specialist's decision was erroneous. Judicial review is concerned with thevalidity of the process used to reach a decision rather than the correctness of thedecision unless it is unreasonable in the manner I shall shortly describe.[13] Mr Galani's argument that the Specialist did not place sufficient weight on theevidence he provided likewise cannot succeed. The weight to be given to relevantconsiderations is a matter for the decision maker and cannot give rise to a ground ofreview unless the decision is unreasonable.[14] It follows that the only valid grounds on which Mr Galani can challenge theSpecialist's decision are that she failed to take into account relevant considerations orshe took into account irrelevant considerations. Alternatively, he may argue that thedecision was unreasonable in the circumstances.The law as to unreasonableness[15] The law in this area is currently subject to some debate. Traditionally thecourts have applied the so-called "Wednesbury test" of unreasonableness in casesinvolving decisions made in an immigration context. This relies on the followingpassages from the judgment of Lord Greene MR in Associated Provincial PictureHouses Ltd v Wednesbury Corporation:5It is clear that the local authority are entrusted by Parliament with the decisionon a matter which the knowledge and experience of that authority can best betrusted to deal with. The subject-matter with which the condition deals is onerelevant for its consideration. They have considered it and come to a decisionupon it. It is true to say that, if a decision on a competent matter is sounreasonable that no reasonable authority could ever have come to it, thenthe courts can interfere. That, I think, is quite right; but to prove a case ofthat kind would require something overwhelming, and, in this case, the factsdo not come anywhere near anything of that kind.The court is entitled to investigate the action of the local authority with a viewto seeing whether they have taken into account matters which they ought notto take into account, or conversely, have refused to take into account orneglected to take into account matters which they ought to take into account.Once that question is answered in favour of the local authority, it may be stillpossible to say that, although the local authority have kept within the fourcorners of the matters which they ought to consider, they have neverthelesscome to a conclusion so unreasonable that no reasonable authority could everhave come to it. In such a case, again, I think the court can interfere. Thepower of the court to interfere in each case is not as an appellate authority tooverride a decision of the local authority, but as a judicial authority which isconcerned, and concerned only, to see whether the local authority have5 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) at230 and 233-4.contravened the law by acting in excess of the powers which Parliament hasconfided in them.(Emphasis added)[16] Palmer J recently questioned the logic of the Wednesbury approach inHu v Immigration and Protection Tribunal.6 Palmer J pointed out that the Wednesburytest involves circular reasoning because it provides a test for unreasonableness basedon unreasonableness.7 His Honour preferred an approach similar to that taken by theSupreme Court in Bryson v Three Foot Six Ltd in relation to circumstances in which afactual determination may constitute an error of law.8 In Bryson the Supreme Courtreferred to Edwards v Bairstow, in which Lord Radcliffe had identified three (rare)situations in which a factual determination might constitute an error of law.9 Thesewere where there was no evidence to support the decision, where the evidence wasinconsistent with and contradictory of the determination and where "the true and onlyreasonable conclusion contradicts the determination".10 The Supreme Court said inBryan that each of these involved decisions that were "so insupportable – so clearlyuntenable - as to amount to an error of law; proper application of the law requires adifferent answer".11[17] Palmer J supported this approach in the context of review based onunreasonableness for the following reasons:12[29] The Court made it clear this is a "very high hurdle". But it is wellestablished and conceptually coherent. I consider the Supreme Court'sreformulation of Edwards v Bairstow offers a better account ofunreasonableness constituting illegality in judicial review than the circularwords 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.[30] Lord Radcliffe's three scenarios, encapsulated by the Supreme Courtas an insupportable or untenable ultimate conclusion, also assist in identifyingwhat constitutes a relatively narrow but usable concept of unreasonableness.A decision may be unreasonable if it is not supported by any evidence, or ifthe evidence is inconsistent with or contradictory of it, or if the only6 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.7 At [27].8 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.9 Edwards v Bairstow [1956] AC 14 (HL).10 At 36.11 At [26].12 Hu v Immigration and Protection Tribunal, above n 6.reasonable conclusion contradicts the determination. The first two of theseinvolve the adequacy of the evidential foundation of the decision. The lastinvolves the chain of logical reasoning in the application of the law to thefacts: if there is a material disconnect in the chain of logic from a fact or alegal proposition to a conclusion, a decision may be unreasonable andtherefore unlawful.(footnote omitted)[18] The observations made by Palmer J in Hu are yet to be considered at appellatelevel. In AH v Immigration and Protection Tribunal Muir J recently acknowledgedthem, but described the situations identified in Edwards v Bairstow as "matters ofnuance".13 Muir J did not consider the issue affected the outcome in the case beforehim so he did not consider the proposed new test further.[19] I acknowledge there are significant advantages in Palmer J's approach becauseit provides greater transparency than the Wednesbury test. The obvious risk inapplying the Wednesbury test is that it leaves scope for the Court to substitute its owndecision for that of the decision maker where it considers the original decision to havebeen wrong on the merits. That runs counter to the underlying rationale for judicialreview, which restricts review to issues of process rather than substance. And, asPalmer J points out,14 the passages set out above from Wednesbury demonstrate thatLord Greene was concerned to ensure the courts did not review the merits ofadministrative decisions other than in truly exceptional cases.[20] Mr Stephen for the Chief Executive submitted that there is now a significantbody of case law, including decisions of the Court of Appeal and Supreme Court,confirming that the Wednesbury test remains the applicable test for unreasonablenessin an immigration context.15 I agree with that statement as far as it goes, but theauthorities on which he relied were deportation cases. I have not located any authorityconfirming that the Wednesbury approach also applies in the present context.13 AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [48].14 At [26].15 See Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at 522, affirmed in Huangv Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [39] and [67], upheld by theSupreme Court in Huang v Minister of Immigration [2009] NZSC 77; Singh v Minister ofImmigration [2011] NZCA 532 at [33]-[34]; see also Singh (Kulbir) v Chief Executive, Ministryof Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [42]-[47].[21] This issue was not the subject of detailed submissions by either counsel,however, so I do not propose to consider it further. For reasons that will becomeapparent, the outcome in the present case would be the same regardless of which testis applied.DecisionThe transfer of funds to New Zealand[22] The only ground on which Mr Galani challenges this aspect of the Specialist'sdecision is that it was unreasonable.[23] Instruction BB3.5 prescribes the requirements for capital investment in theapplicant's proposed business as follows:BB3.5 Requirement for capital investmenta. An applicant must be able to make a minimum capital investment (seeBB3.5.10) of NZ$100,000 in to their proposed business, unless waivedas per BB3.5.1 below.b. The principal applicant must:i. nominate funds and/or assets equivalent in value to the totalcapital investment identified in the business plan; andii. demonstrate ownership of these funds and/or assets (seeBB3.5.5); andiii. demonstrate that the nominated funds and/or assets have beenearned or acquired legally (see BB6.1.5).[24] As both counsel agreed, the Instructions clearly anticipate that the applicantwill use the funds nominated under Instruction BB3.5 to establish the proposedbusiness. This must be so because in deciding whether to grant the visa the Specialistmust be satisfied the applicant owns the funds or assets and that they have beenlawfully acquired. If an applicant was free to use other funds to establish the businessthe Specialist would have no opportunity to form a view on those pre-requisites beforedeciding to issue the visa. Applicants for this type of visa must therefore ensure theyuse the funds or assets nominated in the application to establish the business.[25] In his original application Mr Galani nominated a bank account in his namewith the Emirates NBD Bank in the UAE as the funding source for his proposedbusiness. He said he had earned these funds from trading in business overseas. Heprovided supporting documentation that established he had the ability to access thesum of AED 4.481 million (equivalent to NZ$1.9 million) from that account.16[26] There is no dispute, however, that after Mr Galani was granted a visa hetransferred a total sum of NZ$1.102 million into his bank account in New Zealand.These deposits were made between 31 May 2016 and 14 February 2017, and camefrom bank accounts in the name of Mr Galani and Galani Textile Trading Co Ltd.Mr Galani maintains the latter was the company through which he traded beforearriving in New Zealand. Both accounts were held with the FGB Bank in the UAE.[27] The Specialist was not prepared to take into account the funds transferred fromthe FGB Bank in assessing Mr Galani's eligibility for an extension of his visa becausethey did not come from the bank account Mr Galani had nominated in his applicationfor a visa. The Specialist said this prevented her from assessing whether Mr Galaniwas the beneficial owner of the funds and/or whether he had acquired them lawfully.[28] The requirements of the Instructions reflect the need to ensure that fundsentering the country are the property of those who introduce them and they have beenacquired legally. Any other approach runs the risk of making this country a safe havenfor unlawfully acquired property. A decision made in accordance with the legalrequirements of the Instructions cannot be regarded as unreasonable regardless ofwhich test is applied. It follows that this ground of review cannot succeed.[29] Strictly speaking, this finding is sufficient to dispose of the application forreview. Counsel agreed that the application could not succeed unless Mr Galani couldsuccessfully challenge both of the grounds on which the Specialist made her decision.For completeness, however, I will consider Mr Galani's challenge to the secondground on which the Specialist declined his application.16 The bank statement Mr Galani provided in support of his original application only showed a creditbalance in the account of approximately AED 23,524 but it appears to be common ground that theaccount was a facility that enabled Mr Galani to draw down up to AED 4.481 million.Failure to take reasonable steps to establish the property development business inNew Zealand[30] Mr Galani challenges this aspect of the Specialist's decision on two bases.First, he contends there were errors of process because the Specialist took into accountirrelevant considerations and failed to take into account relevant matters. Secondly,he contends the decision was unreasonable.Errors of process[31] Mr Galani had been granted a visa to establish a business that was to acquireand subdivide residential land in Auckland. This involved the renovation of existingdwellings and the construction of new dwellings on subdivided sections.[32] By the time Mr Galani sought an extension of his visa he had incorporated acompany, Galani Realties Ltd, through which he proposed to operate his business. Hehad also employed a Mr Lachhani to work for the company. By that stage the companyhad purchased one property and agreed to buy another.[33] In finding that Mr Galani had not taken reasonable steps to establish thebusiness the Specialist took issue with the extent to which Mr Galani and the employeewere said to be working on the project. She also considered insufficient progress hadbeen made towards construction of dwellings on the two properties to enable sales tooccur. In particular, she noted that building consents had not yet been issued to enablethe construction of houses on the properties to begin.[34] Care obviously needs to be taken in this area. The focus must be on thereasonableness of the steps taken by the holder to establish the proposed businessrather than on ultimate outcome. Focus on outcome carries risk because, although theapparent lack of any appreciable outcome may indicate a lack of reasonable stepsbeing taken to establish the business, that will not necessarily be the case. There maybe legitimate reasons why a visa holder who takes reasonable steps to establish abusiness is nevertheless prevented from achieving goals set out in a business plan.That is particularly so in a property development business, because it will inevitablybe required to obtain regulatory consents in order to achieve sales of property. Thespeed with which these can be obtained will depend to some degree on the time takenby the regulatory authorities to process applications, and the nature of any conditionsor requirements the authorities might impose.[35] A Specialist who is required to decide whether a visa holder has takenreasonable steps to establish a property development business will therefore need todetermine whether the point the business has reached during the start-up stage isreasonable having regard to the nature and scope of its business. Where no sales havebeen achieved by the end of that period, the holder will need to demonstrate it hastaken reasonable steps not only to set up a business structure but also to acquire anddevelop property. This will usually include the obtaining of regulatory consents.[36] Mr Galani purchased a property situated at 74 Cape Hill Road on 23 August2016. The previous owner of the property had obtained a resource consent for theproperty in the form of a subdivision consent.17 The consent had conditions attachedthat the owner of the land was required to meet to the satisfaction of the AucklandCouncil. Before new titles would issue it was necessary for the owner to obtain acertificate from the Council under s 224(c) of the Resource Management Act 1991 (as 224 certificate) confirming it had approved the survey plan, and that all of theconditions attached to the subdivision consent had been satisfied. At that point theowner could lodge the certificate with the Registrar-General of Land to enable thesurvey plan to be deposited. This would enable new titles to be issued.[37] Mr Galani's subdivision consultant did not lodge the necessary documents withthe Council to enable a s 224 certificate to be issued until 14 July 2017. On 24 July2017 he sent an email to Mr Galani advising him that the Council's engineer had beenon leave, and as a consequence the Council was "running behind tending to this work".[38] Mr Galani's architect similarly sent him an email on 31 July 2017 confirmingthat he was working on the drawings for a building consent to issue.17 Section 87(b) of the Resource Management Act 1991 includes subdivision consents within thedefinition of resource consent.[39] On 29 June 2017 Mr Galani's company had also entered into an unconditionalagreement to purchase a second property at 15 Scott Point. It paid a deposit of$300,000 in relation to that acquisition the following month.[40] The issue for the Specialist was therefore whether these actions constitutedreasonable steps to establish a property development business. Her decision was asfollows:Reasonable steps to establish your businessImmigration instructions require at BB4.5a(ii) that you take reasonable stepsto establish the business, as set out in the business plan.We wrote to you on 08 August 2017 to request more information about yourinvolvement in your real estate development business and to clarify thebuilding progress, on land your business had purchased.Specifically, we raised concern that when we contacted you on 27 July 2017,you advised that construction had not commenced on a residential property at74 Cape Hill Road, Pukekohe, Auckland. You advised that this was becauseyou did not yet have required building consent from Auckland Council & thatyour full-time involvement in your business was organising this consent.In our letter, we raised concern that you provided an email from MikeWilliams, Airey Consultants that appeared to show the business wasresponsible for building consent. We also raised concern that neither 74 CapeHill Road nor land you later purchased at 15 and 15a Scott Point, Hobsonville,Auckland appeared to have regulatory consent, as required by BB6.1.50instructions, relating to real estate development.In response to our concern, your advisor stated "the property at 74 Cape HillRoad does not require [you] to obtain a grant for resource consent. The reasonbeing that they had purchased this property with already existing resourceconsent as the reason for the purchase was to subdivide the property". Noevidence of consents was provided. Your advisor also provided a timeline ofyour involvement in the business which outlined tasks you have undertakenfor your business in May 2016, July 2016, November 2016, January 2017 &between April & June 2017.We have considered your response and the additional information provided on16 August 2017. We are not satisfied this addresses our concerns for thefollowing reasons:• There has been no evidence provided to show regulatory consent hasbeen granted at 74 Cape Hill Road or 15 and 15a Scott Point• The response that you do not need consent to proceed with building74 Cape Hill Road is inconsistent with your comments in thetelephone conversation on 27 July 2017 & an email from Leo Liu, thebuilding's architect, dated 31 July 2017, that he was awaitingdocuments and would then lodge the consent• There is insufficient evidence of your full-time active involvement inyour business, as your business has not commenced operationWe are therefore unable to be satisfied that you meet BB4.5(a)(ii) instructionwhich requires that reasonable steps have been taken to establish the businessas set out in the business plan.[41] I consider there are several flaws in the Specialist's reasoning process. First,the Specialist considered there was an inconsistency between Mr Galani's claim thatthe Cape Hill property already had a resource consent and comments he had made toher during a telephone conversation on 27 July 2017 as well as observations hisarchitect had made in the email sent to Mr Galani on 31 July 2017. There was in factno inconsistency between these statements because the latter were made in relation tothe building consent. That was a different form of consent to the resource consent byway of subdivision consent. There is nothing to suggest Mr Galani's claim that theCape Hill property came with resource consent was incorrect. Had the Specialistproperly understood the email from Mr Galani's land consultant dated 14 July 201718,she would have appreciated the distinction between the two forms of consent.[42] Secondly, the last bullet point of the passage set out above suggests theSpecialist considered Mr Galani's business had not yet commenced operation. Thatwas incorrect because the material before the Specialist indicated Mr Galani had takenseveral steps to establish the business. The issue for the Specialist was whether thesewere reasonable in the circumstances. In addition, the first bullet point stated thatMr Galani had provided no evidence to show regulatory consent had been granted foreither property. This overlooks the fact that the property was purchased with asubdivision consent already in existence. The task for the Specialist was to evaluatewhether Mr Galani had taken reasonable steps to continue the subdivision processduring the start-up stage.[43] The reference in the fourth paragraph to Instruction BB 6.1.50 is also difficultto fathom. Instruction BB 6.1.50(c) contains a general requirement that, in the case ofbusinesses involving residential property development, "the new developments musthave been approved and gained any required consents by any relevant regulatoryauthorities (including local authorities)". Although Mr Galani had not completed the18 Referred to above at [37].process of obtaining new titles and building consents by August 2017, he hadcommenced that process. He was therefore complying with Instruction BB 6.1.50.Again, the issue was not whether Mr Galani had completed that process. It waswhether he had taken reasonable steps to establish the business.[44] Viewing the decision as a whole, I consider the Specialist erred in law byfocussing on the fact that Mr Galani had not yet obtained the necessary consents whenthe real issue was whether he had taken reasonable steps to establish his business. Theobtaining of consents was just one aspect of that process. I therefore consider thisaspect of the Specialist's decision is amenable to review.Was the decision unreasonable?[45] The next issue is whether the decision was also unreasonable. In this contextthe Specialist had the benefit of a timeline provided by Mr Galani's solicitors whenthey wrote to her on 16 August 2017 in response to initial concerns she had expressedin an email dated 8 August 2017. A copy of the timeline is attached to this judgmentas an Appendix for ease of reference. Several comments can be made about thematters contained in the timeline.[46] First, it is clear that Mr Galani was absent from New Zealand for considerableperiods during the start-up stage. He left New Zealand on 10 May 2016 and remainedoverseas until 7 July 2016. The timeline explains this was necessary "to arrange toget the funds transferred to his New Zealand bank account in order to begin investinginto the establishment of his business". This explanation is difficult to accept. In hisoriginal application Mr Galani had nominated his account with the Emirates NBD asthe source from which he would fund the establishment of his business. He has notexplained why he needed to leave New Zealand for two months to arrange for fundingfrom an alternative source. That should not have been necessary given the apparentavailability of funds drawn on the NBD account.[47] Mr Galani then went overseas again between 7 and 19 August "to sort outmatters relating to his business in India and Dubai". He made a further trip between25 August and 3 November 2017 "to deal with business affairs and personal matters".Mr Galani then left New Zealand again on 18 January 2017 and did not return until6 April 2017. During this period he employed Mr Lachhani to work for the companyand he began work using Mr Galani's home office on 1 March 2017. After Mr Galanireturned on 6 April he began looking for suitable office premises. He secured thesethe following month.[48] The timeline therefore discloses that Mr Galani was overseas for 208 daysduring the start-up stage. This was nearly two-thirds of the year. The explanations hehas given suggest he made the trips principally to deal with his personal and businessaffairs outside New Zealand. A reasonable Specialist could therefore reasonablyconclude Mr Galani was concentrating during this period on his affairs overseas ratherthan in New Zealand.[49] Furthermore, although work on the Cape Hill development was clearlyongoing even whilst Mr Galani was overseas, he has never explained why his landconsultant did not lodge the application for a s 224 certificate with the Council until14 July 2017. This was nearly 15 months after he received his visa. Nor has heexplained why his architect had not produced working drawings sufficient to obtain abuilding consent by 30 July 2017. There may have been valid reasons for theseapparent delays, but if so Mr Galani did not provide them to the Specialist. I thereforeconsider that, on the basis of the information Mr Galani provided in August 2017, itwas open to the Specialist to reasonably conclude he had not taken reasonable steps toestablish his property development business by that date.[50] It follows that the application for review could not succeed on the ground thatthe Specialist's decision was unreasonable.Result[51] The application for review is dismissed.Costs[52] The respondent has succeeded and is entitled to an award of costs in its favour.It shall have costs on a category 2B basis together with disbursements fixed by theRegistrar.Addendum[53] Although neither ground for review has succeeded, there may be grounds onwhich Mr Galani could reasonably ask the Chief Executive to reconsider mattersafresh. Mr Galani (and/or his company Galani Textile Trading Co Ltd) would appearto be the beneficial owners of the funds used to establish the business in New Zealand.There is also no reason to believe they acquired those funds illegally. Furthermore, Iconsider Instruction BB 4.5a(i)19 to be ambiguous because it does not require the visaholder to provide evidence to satisfy a Specialist that the funds introduced came fromthe funds or assets nominated in the original application. That requirement must beinferred from the wording used in Instruction BB 3.5(b).20[54] In addition, I have found the second ground on which the Specialist declinedMr Galani's application is amenable to review on grounds relating to process but noton the ground that it was unreasonable. I am conscious, however, that Mr Galani mayhave a credible explanation for his apparent failure to act with greater expedition inobtaining a s 224 certificate and building consents.[55] Mr Galani has now introduced a considerable sum of money into the NewZealand economy in reliance on the visa he obtained in April 2016. In doing so he hasno doubt contributed to some extent to this country's economic growth. It is a matterentirely for the Chief Executive, but a fresh appraisal of Mr Galani's position may nowbe appropriate having regard to the concerns I have raised above.Lang JSolicitors:Legal Associates, Papatoetoe, AucklandCrown Law, Wellington19 Set out above at [7].20 Set out above at [23].Appendix: TimelineApril 2016▪ Mr Galani moved to New Zealand with his family once approval in principlewas given.May 2016:▪ Upon approval and the return of his passports, he travelled overseas on 10May 2016 in order to arrange to get the funds transferred to his New Zealandbank account in order to begin investing into the establishment of hisbusinesss.July 2016:▪ Returned to New Zealand on 07 July 2016. Mr. Galani began his search forproperties to invest in, as well as set up office spaces, meet with accountants,lawyers, surveyors and other tradesmen.August 2016:▪ Mr Galani returned back overseas on 07 August to sort out matters relating tohis business in India and Dubai.▪ Returned back to New Zealand on 19 August▪ Purchased 74 Cape Hill Road property on 23 August. Deposited $480,000NZD.▪ The plan was to subdivide the property at 74 Cape Hill Road into two lots andbuild two houses. In order to further that plan, Mr Galani began dealing withthe Auckland Council, property surveyors and engineers.▪ During this time, Mr Galani was operating his business affairs from his homeoffice whilst looking for a separate office space.▪ 25 August – Travelled overseas to deal with business affairs and personalmatters.November 2016:▪ 03 November 2016 – Returned to New Zealand and began subdivision workat site 74 Cape Hill Road▪ Dealt with necessary parties to perform the subdivision work.▪ Began looking for employees and office spaces. An employee was soughtearly as the pressure was mounting. Mr. Galani was working long hours.December 2016 & January 2017:▪ Holiday season – Mr. Galani was not aware that everyone takes breaksaround this period of time. Less work was completed.▪ 18 January 2017 – Mr. Galani travelled overseas to sort out business andpersonal affairs.▪ Whilst overseas, Mr. Galani hired Mr. Lachhani to start working for him from1 March 2017 in order to look after his 74 Cape Hill Road project whilst Mr.Galani was overseas.March 2017:▪ Mr. Lachhani began work from Mr. Galani's home office at 22 Nirvana Way,Mt. Roskill.▪ Mr. Lachhani dealt with real estate agents, architects and trades people inorder to further the sub-division work at 74 Cape Hill Road and beginplanning the building process.▪ Mr. Lachhani also began looking for other properties for Mr. Galani topurchase.▪ Mr. Lachhani worked full time, a minimum of 30 hours a week.April 2017:▪ 06 April – Mr. Galani returned to New Zealand.▪ The search for an office space continued.▪ Mr. Galani's office space was finalized – 94 B Stoddard Road, Mt Roskill.May 2017:▪ Work began from office space.▪ 03 May – Mr. Galani continued his search for other properties to purchaseand develop as per his business plan.▪ Work at 74 Cape Hill Road was ongoing – communications, phones, emailswith all parties involved. Final work and inspections were going on.June 2017:▪ Scott Point properties were signed on 20 June after many negotiationsJuly 2017:▪ Completed all services for subdivision at 74 Cape Hill Road▪ July 14 – Applied for a Section 224C Certificate – Property, Consents andLicensing. Council processing time frames for this application are 2 – 3months▪ Architect is working concurrently on the building plans. It takes four weeksto submit the plans, and council approval time frame is another 2 – 3 months▪ Deposit of $300,000 paid for the Scott Point propertyAugust 2017:▪ Currently working with Architect and Master Builder for plans with the ScottPoint property.▪ Following up with Council for the Section 224C application and the Architectfor 74 Cape Hill Road plans.September 2017:▪ Mr. Galani plans on going overseas to organize funds for the settlement ofScott Point.▪ Work with surveyors, developers and council to obtain title.October 2017:▪ Once title is issued, Mr. Galani will proceed with his business plan and beginthe process of advertising and selling off the properties in which he hasbegun work for. This depends on how quickly the council issues permissionsand how fast the construction company works.▪ The process of building at 74 Cape Hill Road is expected to takeapproximately 6 months.▪ The process of building at Scott Point is planned to begin for February 2018.