Liu v Ministry of Business, Innovation & Employment [2014] NZHC 3074

Liu v Ministry of Business, Innovation & Employment [2014] NZHC 3074 [4 December 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-2158[2014] NZHC 3074UNDER s 245 Immigration Act 2009IN THE MATTER of an application for leave to appeal thedecision of the Immigration & ProtectionTribunalBETWEEN YINGHENG LIUApplicantAND MINISTRY OF BUSINESS,INNOVATION & EMPLOYMENTRespondentHearing: 3 December 2014Counsel: SL Laurent for applicantAR Longdill and OM Klaassen for respondentJudgment: 4 December 2014JUDGMENT OF FAIRE JThis judgment was delivered by me on 4 December 2014 at 12 noonpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Laurent Law, AucklandMeredith Connell, AucklandIntroduction[1] The applicant applies for leave to appeal a decision declining the applicant New Zealand residence. The proposed appeal raises issues concerning the distinction between business investment and working capital and the requirement to create employment. It is opposed by the first respondent. The applicant has discontinued an application for leave to bring judicial review arising out of the same facts.Background[2] On 18 June 2013, the applicant's application for a long-term business visa, a work visa under the business category of New Zealand Immigration instructions under the provisions which related to the Business (Entrepreneur Plus) Category, was declined. Immigration New Zealand was not satisfied that the applicant had invested at least $500,000 into TDA Immigration Mt Albert Ltd and was not satisfied that the applicant had created a minimum of three full time employment positions for New Zealand citizens or residents in TDA Immigration Mt Albert Ltd.[3] The applicant appealed to the Immigration and Protection Tribunal.Immigration and Protection Tribunal decision[4] The Tribunal's decision was given on 31 July 2014. It held that ImmigrationNew Zealand's decision to decline the application was correct.[5] The Tribunal's decision records that when the applicant made his application he advised Immigration New Zealand that instead of establishing a new company, he had in fact acquired a 30 per cent shareholding in TDA Immigration Mt Albert Ltd.[6] The Tribunal found that the company had three full time employees at thetime he transferred $500,000 into the company's bank account on 24 August 2012. It also found that the company had transferred $350,000 into a term deposit on 29 August 2012. It noted that Immigration New Zealand had not been satisfied that the applicant had made an investment of $500,000 in the company. It also noted that the company had four full time employees at this time. However, when the applicantacquired his shareholding the company already had three employees with the result that the applicant had not been the person who had created three employment positions.[7] The Tribunal noted that the application for leave to appeal was made on 22 November 2012 and that it must therefore apply the Government residence instructions in existence at that time. The relevant instruction is BL6, which provides as follows:BL6 Successful establishment of a business in New Zealanda. A principal applicant will be considered to have successfully established a business in New Zealand if:i. they have established or purchased, or made a substantial investment in a business operating n New Zealand; andii. they have been self-employed in New Zealand in that business since meeting (i); andiii. they have invested at least NZ$0.5 million into the business as set out at (i); andiv. they have created a minimum of three full-time positions for New Zealand citizens or residents in that business; andv. the business complies with employment and immigration law.[8] The Tribunal held that:(a) the applicant had not established that he had in fact invested $500,000 into this business;(b) Immigration New Zealand correctly found that holding funds in a term deposit did not constitute a business investment;(c) Immigration New Zealand correctly identified that no evidence had been produced to demonstrate that the balance remaining had been invested in the business in accordance with his instructions; and(d) He had not established that he had created three additional employment positions because of the four employees currently employed by the company, two had been employed since June 2011.The application for leave to appeal[9] Section 245 of the Immigration Act 2009 provides:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.(2) Every appeal under this section must be brought—(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.[10] In SK v Immigration and Protection Tribunal, I summarised the applicable approach to determining an application for leave to appeal as follows:1[6] The requirement that issues justifying a judicial review or an appeal are those which, by reason of their general or public importance or for any other reasons, ought to be submitted to the High Court by definition narrow the grounds that justify the granting of leave. I adopt the statement of principle in LMN v Immigration and Protection Tribunal New Zealand:The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal1 SK v Immigration and Protection Tribunal [2014] NZHC 2693.errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing 'any other reason' for his appeal to be submitted to this Court for determination.[7] While Duffy J was discussing s 245(3) in relation to appeals, the language used is the same as that in s 249(1C)(b) and her Honour's comments are equally applicable to that subsection, once the gateway of s 249(1C)(a) is passed.[8] In Minister of Immigration v Jooste the Court of Appeal noted that the test is similar to that applying to second appeals to the Court of Appeal under s 67 of theJudicature Act 1908. The Court referred to the Court's earlier decision in Waller v Hider. There, the Court, considering s 67 of the Judicature Act 1908, observed:Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder.[9] The remaining category "any other reason" has likewise been the subject ofconsideration. I adopt the comment of Kós J in Taafi v Minister of Immigration where he said: it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met. [Citations omitted]Discussion[11] I reach the conclusion that there is no seriously arguable question of law involved in this appeal and, in particular, that the appeal simply cannot succeed because of the factual findings that have been made. That arises from the fact thereis a finding recorded in the Tribunal's decision that two of the employees of thecompany had been employed since June 2011. There is nothing that connects the employment of those employees and the position they held in the company with the applicant. There is, therefore, no foundation for compliance with BL6(a)(iv). This conclusion is sufficient to dispose of the application.[12] I do not intend to summarise the submissions of counsel because the answer, based on the factual findings is that no appeal could succeed in this case.[13] Even if the applicant's arguments as to whether there had been an investmentin compliance with BL6(a)(iii) were correct, they could not overcome the difficulty that the applicant's application could not pass the threshold required for compliancewith BL6(a)(iv).[14] The application for leave to appeal is accordingly dismissed. Counsel confirmed that there were no issues as to costs.____________________JA Faire J