IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2021-404-56 [2022] NZHC 1466	

UNDER	Judicial Review Procedure Act 2016	
IN THE MATTER	of an application for Judicial Review	
BETWEEN	MYPAY NEW ZEALAND LIMITED
Applicant	
AND	CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent	

Hearing:	2 February 2022	
Appearances:	J T Burley and K L Chiu for Applicant
C P Paterson and P J O’Boyle for Respondent	
Judgment:	22 June 2022	

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 22 June 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
McVeagh Fleming, Auckland Meredith Connell, Auckland

MYPAY NZ LTD v MBIE [2022] NZHC 1466 [22 June 2022]

Introduction

[1]	MyPay New Zealand Limited (the applicant) applies for judicial review of a decision made by Immigration New Zealand on 23 September 2020 declining to grant the applicant’s application for accredited employer status (the decision). The Chief Executive of the Ministry of Business, Innovation and Employment (MBIE) who has overall responsibility for Immigration New Zealand (INZ) which is an agency within MBIE, is named as the respondent.

[2]	The applicant alleges that the decision was founded on material errors of law and fact; breached the rule against bias; breached natural justice; breached the applicant’s legitimate expectation of a positive reconsideration of the declined original application; was made unreasonably and irrationally; and was made in breach of the respondent’s duty to act consistently.

Background

[3]	The applicant is an incorporated company that develops digital payment platforms incorporating various international mobile payment methods such as Alipay, and WeChat Pay. Alipay and WeChat Pay are both payment platforms established in China 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 on members of the Chinese community in New Zealand, it considers that it is critically important that its employees are fluent in the Chinese language and familiar with the Chinese payment platforms used by the applicant to transact its business for its clients.

[4]	Having experienced difficulties in attracting and retaining suitably experienced and skilled employees, and being unable to sponsor or offer prospective employees a work-to-residency visa, the applicant made an online application to INZ on 17 April 2020 to be granted “Accredited Employer” status. Being an Accredited Employer enables the employer to use the Accredited Employer Work Visa (AEWV) to hire migrants on visas for up to three years. Accredited Employers are required to pay at least the New Zealand median wage, show that they cannot find suitable New Zealand residents to fill the employment positions and meet criteria to show that they will be a good employer.

[5]	On 22 May 2020, INZ wrote to MyPay confirming receipt and acceptance of its application and setting out the processing timeframes. On the same date INZ wrote to and sought information from the Labour Inspectorate and WorkSafe New Zealand about any interactions they had had with MyPay, and also sought information from ACC 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 the application, and requesting further information relating to the employment positions to be filled. In this letter INZ noted that the salary ranges for prospective employees contained in the application were below the required minimum threshold, and provided information regarding the minimum salaries required to be paid in order to support an AEWV. The letter also advised that INZ was required to assess whether the applicant’s current financial position satisfied its immigration instructions for accreditation, and requested the applicant to provide financial statements covering the most recent two years of financial reporting. INZ also requested further information regarding the applicant’s:

(a)	Human resources policies and processes.

(b)	Evidence of any training undertaken in the previous 12 months to further the professional development of New Zealand citizens or residents employed by the applicant.

(c)	Information regarding the ratio of New Zealanders employed by the applicant, and information outlining the steps the applicant intended to take to alleviate its reliance on a migrant workforce.

(d)	Information detailing how the applicant intended to comply with the immigration regulations.

(e)	Information about workplace practices relating to the promotion of diversity.

[7]	Having made an initial assessment of MyPay’s application, on 3 August 2020 INZ sent a Potentially Prejudicial Information (PPI) letter to the applicant’s solicitors advising that INZ had identified a number of issues “which may have a negative impact on the outcome of your application”. In the letter, INZ detailed a number of matters regarding the application that it considered were unsatisfactory. It noted that the financial statements which had been provided were for an entirely different entity than that applying for accreditation; identified and explained deficiencies in the information provided in support of the application; and stated that INZ required evidence that New Zealanders employed in the same or similar roles as those MyPay intended to fill with migrant employees were being paid salaries equivalent to those that it proposed to pay the migrant employees it wished to employ using the AEWV scheme. INZ also noted several other deficiencies in the information provided by the applicant, and said that  any further information was required to be  provided by     17 August 2020. The letter further advised that if the applicant did not send any comments or information by that date, INZ would proceed to make a decision based on the information already given, in which case it was unlikely that the application would be approved. INZ advised:

As the issues detailed above may affect the outcome of your application, we are bringing them to your attention out of fairness to you.

We have not made a decision on your application at this stage. This letter gives you the opportunity to make any comments and submit any additional evidence or information in relation to these issues.

[8]	On 17 August 2020 the applicant provided further information to INZ intended to address and satisfy INZ’s request for further information, and on 2 September 2020 the 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 advising that it had decided to decline the application for employer accreditation because it was not satisfied that the applicant’s business met all the requirements set out in the INZ Talent (Accredited Employers) Work Instructions. In this letter INZ noted that by email dated 2 September 2020 the applicant had provided further evidence in response to INZ’s letter of 3 August 2020. INZ then set out its reasons for declining the application. It said:

When considering the proportion of the workforce who are New Zealand citizens or residents we can only consider the ratio of employees [and] we can only 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 Zealand citizens or residents and have provided additional evidence of training of those individuals.

Based on the information declared in the online application, it appears that the business currently employs 16 staff, and 9 of them are New Zealand citizens or 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 factors do not outweigh the fact that the proportion of [MyPay’s] workforce who are New Zealand citizens or residents shows that [MyPay] does not have a commitment to training and employing New [Zealand] citizens or residence visa holders.

We remain dissatisfied that the application meets immigration instruction WR1.25.5(c)(iii), therefore the application for accreditation has been declined.

[10]	In the 23 September 2020 letter INZ also advised the applicant that it may be eligible to request a reconsideration of the decision to decline its application, and if it wished to apply for reconsideration of the decision it was required to make a written request to the Christchurch Accreditation Team and  pay a  fee  of  $240.00 within  14 days of being notified of the decision declining the application.

[11]	On 6 October 2020 the applicant’s solicitors made an application to INZ for reconsideration of its assessment decision, which was accompanied by further information relating to the applicant’s workforce ratio to show that the INZ work force ratio requirements were now met.

[12]	Following receipt of the applicant’s reconsideration request, on 19 October 2020 and in accordance with its standard practice as regards the reconsideration process,  INZ  allocated  the  reconsideration  to  a  different  immigration  officer, Ms Nicholson-Canning. Ms Nicholson-Canning conducted a full review of MyPay’s application, which included the information provided for the initial assessment and the further additional information provided by MyPay to INZ. Ms Nicholson-Canning conducted an assessment of the application for accredited employer status afresh and by reference to the criteria set out in the immigration instructions. Ms Nicholson-

Canning concluded that the additional information provided by MyPay meant that the reason for the decline was no longer valid, however she had a number of other concerns which did not appear to have been fully addressed in the initial application for accreditation. In the course of her review she also noted that there were a number of documents which appeared to be missing.

[13]	Ms Nicholson-Canning and Mr Lam exchanged emails on 24 November 2020 regarding progress with the reconsideration of the application, and on 30 November 2020 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 the applicant’s solicitors. In this letter she advised that based on the evidence provided by the applicant with its reconsideration request, INZ was now satisfied that the applicant had a staff ratio of 70.59 per cent of New Zealand citizens, and that it appeared to have been recruiting in New Zealand again. She said:

As this was the only aspect of WR1.25(c)(iii) that was declined on and it no longer appears to be an issue it appears the applicant may be compliant in all aspects of WR1.25(c)(iii) based on the original [Immigration Officer’s] rationale.

While the original decision was correct, based on the new information provided with the reconsideration application the reason for the decline no longer appears valid.

Despite the above – I have noted further concerns that were not fully addressed in the initial application for accreditation therefore, these will need to be addressed fully before a final decision can be made. These concerns are outlined below …

[15]	Ms Nicholson-Canning then identified several issues as not having been satisfied by the information provided in support of the application:

(a)	Under the heading “Sound financial position” INZ noted that the documents provided by the applicant did not specifically provide the financial information for the applying entity, but rather referred to other entities that are included under the same parent group. INZ noted that from the information provided it appeared that audited accounts of MyPay NZ Ltd for the financial years 2018 and 2019 showed that it was in a net liability position and had suffered net losses in those

financial years of $184,000 and $664,000 respectively. INZ requested the applicant to provide further evidence to demonstrate that it was in a sound financial position, and advised that:

We are not yet satisfied that you are in a sound financial position as per immigration instruction WR1.25(c)(i) and your application for accreditation may be declined.

(b)	Under the heading “Human resource policies and processes which are of a high standard” INZ noted that the employment agreement accompanying the application included a clause providing for employees to be employed on the basis of trial periods. It pointed out that the Employment Relations Amendment Act 2018 which came into force on 6 May 2019 provided that the 90 day trial periods were restricted to businesses having 19 or fewer employees. INZ said that although  the  original  application  stated  that  the  applicant   had   16 employees, the further information provided indicated that the applicant was actively recruiting and may soon have 19 employees meaning it would no longer be able to rely on the trial period provisions. INZ therefore requested the applicant to have another employment agreement prepared that reflects “accurate lawful requirements of business with more than 19 employees”.

(c)	INZ also noted that further information it had requested regarding the applicant’s human resources policies and procedures had not been provided as a number of attachments referred to by the applicant as being attached to its email to INZ dated 17 August 2020, had not been attached. These documents were: the applicant’s Health and Safety Manual; Policy Manual; Pay Training Manual; Recruitment process guideline; and Induction Day power point document. INZ accordingly requested the applicant to provide those documents and the requested amended employment agreement. It said:

We are not yet satisfied that the information you have provided demonstrates human resource policies and processes which are of a high standard as per immigration instruction WR1.25(c)(ii). The application may therefore be declined.

(d)	Under the heading “Demonstrable commitment to training and employing New Zealand citizens or residence class visa holders” INZ noted that in support of its application the applicant had provided a training log for a designated business group described as the “IEFSL External Training Register, and Governance Training record”. However the training log for the business group appeared to be a list of names with dates marked off, which was not in itself indicative of training. INZ noted that the IEFSL External Training Register appeared to relate to training for multiple entities within the group, and repeated that INZ was required to assess information specific to the applying entity only. INZ concluded:

To date we have not yet received sufficient evidence of a demonstrable commitment to training New Zealand citizens or residents.

For the reasons outlined above, we are not yet satisfied that the company’s current efforts demonstrate a commitment to training New Zealand citizens and residents, as stipulated by immigration instruction WR1.25(c)(iii). The application may therefore be declined.

(e)	Under the heading “Risks to the integrity of New Zealand’s immigration or employment laws or policies” INZ noted that the applicant had referred in its response to an earlier INZ letter having enclosed a MyPay NZ Ltd Organisational Chart, MyPay employee payslips for the period July to February 2020, and an IRD 348 form for the July to February 2020 period, however those documents had not been attached to the email in which they were referenced. INZ requested the applicant to provide the information. It said:

We are not yet satisfied the applicant has roles that would meet the required salary threshold therefore there may be a risk of salary inflation should accreditation be granted.

It appears that accrediting your company may create unacceptable risks to the integrity of New Zealand’s immigration law due to the factors outlined above. The application therefore does not meet immigration instructions WR1.25.5(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 your application, we are bringing them to your attention out of fairness to you.

We have not made a decision on your application at this stage. This letter gives you the opportunity to make any comments and submit any 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 requested above we will make a decision on your application based on the information you have already given us. We are unlikely to approve your 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 was previously supplied, so to be proactive our [client] instructs that we follow up today. Please see copies of correspondences to INZ with the information that was identified by INZ to be missing in its file:

1.	Email to Marcus [Lower]1 on 17 August with 14 attachments

2.	Email to Marcus [Lower] on 2 September with 5 attachments

We also provide new documents to assist INZ with its proper and speedy assessment with 5 attachments.

1)	Updated and extra Training and Payroll information. Payment of salaries for $80,000 or more is within the market rate for the positions advertised and any risk of income inflation is rejected as assumption and conjecture.

2)	Updated Employment Agreement with changes required by INZ reflecting trial period and hours of work (as this is a template the hours was formerly a placeholder in any regard)

3)	Miepay and [MyPay] organisational chart showing the connection between the Publicly traded Australian NSX entity and the current company which is a 100% owned subsidiary of the Australian entity.

4)	Equity and Liquidity Analysis letter and comments from the business’s Financial Controller; and

5)	12-month forecast for MyPay New Zealand limited

Please also let us know when is a good time to arrange a phone conversation with 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 following Monday morning. Then on Monday 7 December 2020 Ms Nicholson-Canning telephoned Mr Lam and following their telephone conversation he sent her a copy of the emails and the enclosures that the applicant’s solicitors had sent INZ with their email of 2 September 2020.

[19]	On 8 December 2020 Forest Harrison sent an email to INZ in response to INZ’s letter of 30 November 2020. In this letter the applicant’s solicitor, Mr Lam, referred to 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 2 September 2020, and consequently had failed to assess the information enclosed with it which addressed the matters raised by INZ in its letter of 3 August 2020, and had also failed to reconsider the matters raised in INZ’s letter of 30 November 2020 in light 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 September 2020, as it was that email which contained the invoice for Directors Regulatory Update 2019 as an attachment. Mr Lam said:

5.	This is compounded by the fact that the initial decline decision letter of 23 September 2020 does not indicate that further information has not been received. Indeed, the decline decision acknowledges receipt, and states that “on 02 September, you provided the following evidence via e-mail”.

…

6.	The decline decision did not state any other issues that failed to meet INZ instructions and only identified an issue relating to the “proportion of [MyPay’s] workforce”. This has now been rectified by the natural attrition of time and covid-19 resulting in the departure of many work visa holders.

…

7.	It is not reasonable nor consistent with the principles of Fairness and Natural Justice to find new issues with the applicant’s request for consideration for accreditation when there was no identified disqualifying issue in the 23 September 2020 decision. It is a breach of Fairness and Natural Justice to issue a PPI letter based on INZ’s assessment when the information provided to INZ has been lost by INZ. It is a further breach of Fairness and Natural Justice to insist on

proceeding with the initial PPI letter notwithstanding INZ’s loss of probative information has been rectified and provided to it in replacement of said lost evidence.

…

8.	In any case, our client has provided the further information on 3 Dec 2020 which answers the issues relating to the matters of [MyPay] NZ Ltd’s financial statuses [sic]. It has provided updated employment agreement, as well as extra Payroll information which indicates that the median wage of the applicant’s employees for the type of positions sought are at market rate of $80k or above (hourly rate equivalent of $38.46@ 40 hours a week). The suggestion that the applicant will be a risk of engaging in salary inflation is without merit. An assessment of the recent Employer IRD pay run report will show that for the month of Oct 2020 the average hourly rate across the entire organisation was $53, across 19 employees total. Adjusting the figures for full time workers this average hourly pay is $45.43. INZ therefore has no reasonable assessable risk that any employees income has been or is open to inflation.

Our client confirms that they have provided all information that should be considered by INZ at this stage.

[20]	Email correspondence between Mr Lam and INZ established that the initial INZ decision maker who had declined the application on 23 September 2020 had overlooked the attachments to MyPay’s solicitors’ email dated 17 August 2020. On 11 December 2020, following the exchange of emails between INZ and the applicant’s solicitors, 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 hopefully provide clarity and advise next steps.

My understanding is that your response sent to Marcus [Lower] on the 17th of August was quarantined by our email system and then subsequently released. It would appear that once this was released Marcus did not spot the attachments included within the email due to the formatting of the release of the email. We apologise for this oversight.

[Ms Nicholson-Canning] has now reviewed the original decision and application as a whole and has decided that whilst the original decision was correct, there is now sufficient new information to consider the original ground for decline is now met. However during the course of completing the reconsideration [Ms Nicholson-Canning] has identified a number of further issues that need addressing in order for the application to meet all immigration instructions.

It is my understanding that [Ms Nicholson-Canning] has a copy of the email sent on the 17th of August along with other correspondence from you on behalf of your client. Are you in a position to confirm whether there is anything further your client would like to submit in order to address the concerns raised by [Ms Nicholson-Canning]? If there isn’t anything additional we will move ahead with assessing the information submitted and communicate an outcome on the reconsideration early next week.

Regards,

…

Colin Paintin Immigration Manager
[21]	The applicant’s solicitor responded by email also dated 11 December 2020 sent to Ms Nicholson-Canning and copied to Mr Paintin in which he requested INZ to proceed with reconsidering the application for accreditation and assessing the further information submitted. He said:

Hi [Ms Nicholson-Canning]

We further attach market rates analysis which indicate that payment of 80k or above is entirely within the normal expected payment range for the positions that the employer is seeking accreditation for. The business is one of New Zealand’s premier FINTech companies. This is within the objectives of the accreditation category. It is puzzling to see where the alleged salary inflation may come from when the market rate is in the 76 – 110k range for the roles in question. Any risk of inflation cannot be reasonably classified as significant when the difference between the average rate and the benchmark of 79560 is less than 4%.

Please proceed with assessing the information submitted.

Finding out there was information which was missed in the initial assessment is disappointing for our client to hear. If no reconsideration was lodged then they would not even have become aware of this.

Kind regards, [Mr Lam]
[22]	On 13 January 2021 INZ declined the application. The 13 January 2021 decision and INZ’s reasons for declining the application were set out in a letter sent to MyPay’s solicitors on that date. The reasons for the decision set out the four criteria contained in WR1.25 and included a review of the procedural history of the application including details of the outcome of the initial assessment and declining of the application and the reasons for that decision. The decision noted that the application

had 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 its reconsideration application that criteria had been satisfied and the reason for declining the application no longer appeared valid. However the decision further advised:

Despite the above – We noted further concerns that were not fully addressed in the initial application for accreditation.

Our decision on your application

We have decided to decline this application for employer accreditation because we are not satisfied the business meets all the requirements set out under the Talent (Accredited Employers) Work instructions.

Sound financial position

…

It is noted that the documents provided do not specifically provide the financial 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 financials specific to the applying entity.

…

The above section also appears to suggest that MYPAY New Zealand, as at FY19 [financial year 2019] was in a net liability position and had suffered net loss, amounting to $184k and $664k respectively.

Further in the report, a table presents a historical income statement summary for MYPAY New Zealand Limited (page 17).

This table shows that the applicant has experienced net losses for 3 financial years in a row, ($3,000) in FY17, ($111,000) in FY18, and ($664,000) in FY19.

It appears that the applicant may not be in sound financial position based on the apparent history of net losses over the last 3 financial years for which data is available.

In response to the PPI sent 30 November 2020 the applicant supplied the requesting email and attachments from 17 August 2020 and additional information.

From the 17 August 2020 email response, [the] applicant has supplied:

- Companies register screenshot showing MYPAY is part of MIEPAY and subsequently the MIEPAY (Australian company) financial report for March 2020.

As previously noted this is not sufficient as we must assess the financials from the entity applying for accreditation. Despite noting that separate financials

appear to exist as they are referenced in the RSM DDC report provided with the initial online application[,] individual financial reports for MYPAY have not been provided.

Regardless of the above if the MIEPAY reports were taken into account, they would not mitigate our concerns as they also show a history of loss. MIEPAY shows net loss of $(2,663,047) in FY20, and $(739,810) in FY19. Equity for MIEPAY is also $(907,720) in FY2020, down from $791,883 in FY2019. This does not appear indicative of the applicant being in sound financial position.

…

Risks to the integrity of New Zealand’s immigration or employment laws or policies

…

In response to the PPI sent 30 November 2020 the applicant supplied the requesting email and attachments from 17 August 2020 and additional information.

From the 17 August 2020 email response, [the] applicant has supplied details on current employees’ salaries.

It appears the NZ citizens currently holding the roles of Business Development 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 their original online application.

The risk that the applicant may inflate salaries to meet the requirement of WTR visa applications should they be granted accreditation remains.

Applicant has also submitted payscale evidence. The range of pay was never called to question. The concern was whether the applicant had pay parity between their New Zealand citizen or resident employees and what they are required to pay migrants under WTR. Based on the payslip, and employee information received, it appears there may [be] a risk of inflation.

We are satisfied there may be a risk to the integrity of immigration laws or policies as per immigration instruction WR1.25.5(j) therefore this application has 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 noted on INZ’s MyPay New Zealand file relating to its application for accreditation. The three warnings related to:

(a)	A warning on the file effective 10 June 2020 relating to a site visit made by INZ officers on 3 May 2018 to MyPay’s business premises.

(b)	A warning on the file effective 23 July 2020 relating to concerns that had been identified requiring further employer financial information to assess employer sustainability.

(c)	A warning on the file effective 3 November 2020 relating to anonymous information received by the Police through the “Crime Stoppers” telephone line.

The immigration instructions

[24]	The objectives, procedures and criteria applicable to employers’ applications for accreditation under INZ’s applicable Talent (Accredited Employers) Work Instructions accreditation scheme as at the time of MyPay’s online application, are set out in WR1.25 which provides:

WR1.25	Requirements for accreditation (07/10/2019)

a.	The objective of accreditation is to allow accredited employers to supplement their own New Zealand workforce in their core area of business activity through:

i.	the recruitment of workers who are not New Zealand citizens or residence class visa holders and whose talents are required by the employer; and

ii.	the accredited employer having direct responsibility for those employees and their work output.

b.	Under Talent (Accredited Employer) Work Instructions, accredited employers may offer employment to workers who are not New Zealand citizens or residence class visa holders without the need to establish that there are no New Zealand citizens or residence class visa 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 is satisfied that an employer:

i.	is in a sound financial position; and

ii.	has human resource policies and processes which are of a high standard; and

iii.	has a demonstrable commitment to training and employing New Zealand citizens or residence class visa holders; and

iv.	has good workplace practices, including a history of compliance with all immigration and employment New Zealand laws including but not limited to the Immigration Act 2009, the Accident Compensation Act 2001, the Minimum Wage Act 1983, the Health and Safety at Work Act 2015, the Employment Relations Act 2000, Wages Protection Act 1983, Parental Leave and Employment Protection Act 1987, the Equal Pay Act 1972 and the Holidays Act 2003.

d.	Subsidiary companies cannot be covered by the accreditation of a parent company. To be accredited they must apply in their own right.

WR1.25.1	Applying for accreditation

a.     An application for accreditation must be  made online  using  the electronic form provided on the INZ website. Applications must be accompanied by documents which demonstrate that the employer meets the requirements for accreditation set out at WR1.25.

…

WR1.25.5	Determining applications for accreditation

…

f.	An immigration officer must be satisfied that the information and documents included in an application for accreditation are genuine and accurate, and may take any steps it determines necessary to verify such documents and the information they contain, including interviews. An immigration officer will decline an application for accreditation if they are satisfied that an employer provided false or misleading information in support of an application, or withheld relevant information that was prejudicial to the grant of accreditation.

…

WR1.25.10	Reconsideration process for applications for accreditation which are declined

a. There is no statutory right of appeal against the decision to decline an application for accreditation, however INZ will reconsider a declined application for accreditation where new information is promptly provided within 14 days of the employer being notified of the decline.

…

IMS evidence

The AMS computer file and assessment process

[25]	In her affidavit evidence immigration officer Ms Nicholson-Canning has described INZ’s Application Management System (AMS) and the warning facility on the internal computer system that is used to record an immigration officer’s decision- making process. It contains records of notes made by immigration officers and correspondence between MyPay and INZ. Ms Nicholson-Canning produced the full record of the AMS notes as an exhibit to her first affidavit. The AMS warnings on the system will appear as a “pop-up” when the electronic file is first accessed, however the immigration officer will have to specifically select the warning in order to view its contents. Warnings are recorded against individual client AMS files in a separate tab to general AMS notes. In the course of an immigration officer’s processing and assessment of an accreditation application, AMS notes and any warnings on the file are not routinely disclosed to the applicant as the information they contain often comes from anonymous sources or informants whose identities need to be protected. Routine disclosure of this information could be to the informant’s detriment or could undermine INZ’s ongoing investigations. Ms Nicholson-Canning says that while the contents of AMS notes and warnings can be made the subject of requests by an applicant under the Official Information Act 1982, in the absence of such a request no information is disclosed by INZ to an applicant because the applicant provides the information that is to be assessed by the INZ officer.

[26]	Ms Nicholson-Canning also describes the general way in which immigration officers conduct the assessments. If an officer requires additional information after making an initial assessment of an application, they may send a request for further information to the applicant. If the officer is not satisfied that the information, or further information, provided by the applicant supports the application they will send a potentially prejudicial information letter (PPI letter) to the applicant outlining their concerns and giving the applicant an opportunity to respond and provide further information. Upon receipt of any further information from the applicant and following an assessment of it the immigration officer can either proceed to make a decision on the application or alternatively send a second PPI letter where the further information

provided has not satisfied the concerns which were identified in the first letter or have raised 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. A PPI letter must be sent before a decision is made, as this ensures that an applicant has been given fair notice of the issue(s) identified by INZ and has an opportunity to respond 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 carrying out her assessment of MyPay’s application following the applicant’s request for INZ to conduct a reconsideration of its application. She states that when she accessed the AMS and MyPay’s notes she saw the pop-up page on which three warnings were noted. Ms Nicholson-Canning clicked on the first warning dated 10 June 2020, which related to a site visit undertaken by an INZ verification officer to business premises of IE Finance Group Ltd in May 2018, to verify multiple offers of employment provided by that company and its associated business entities. She reviewed the notes which referred to a number of companies which appeared to have shown an unwillingness to provide requested financial information. The companies associated with the warning included IE Financial Services Limited (which had been renamed PAL TECH Ltd on 20 January 2020) and which was described as the parent company, and seven other companies including IE Finance Group  Ltd  and  the  applicant,  MyPay  NZ  Ltd. Ms Nicholson-Canning states that she did not however refer to the verification report related to this warning.

[28]	As regards the second warning dated 23 July 2020, Ms Nicholson-Canning noted that it related to a request made by INZ for employer financial information in relation to an employee’s application for variation of visa conditions. MyPay was the supporting company.  Ms Nicholson-Canning also viewed the  third warning dated   3 November 2020 which related to anonymous information received by the Police on its “Crime Stoppers” telephone line.

[29]	In considering the June 2020 warning, Ms Nicholson-Canning noted that IE Finance 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 of MyPay. Ms Nicholson-Canning made a search of the New Zealand Companies Office Register 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 referred to other companies, “IE Finance/MIE Pay”, and her online enquiries into MIE Pay led to her locating a timeline on the MIE Pay website which showed that MyPay was part of IE Financial Services Group in 2016.

[30]	Ms Nicholson-Canning notes that MyPay had earlier been requested to provide documentation evidencing its financial position, employee training, and human resource policies, and on 4 December 2020 she received further documents from MyPay, which as well as providing the information required for the purposes of an assessment of its accreditation application, also set out the structure of the group of companies it was within and showed MyPay’s links to the companies named in the warning. These documents showed that MyPay is a subsidiary of IE Financial Services Ltd. Other information referred to costs or expenses shared between the companies in the group which appeared to include employee salaries and suggested that employees under one entity are seconded to or managed under another entity within the group. The human resources manual provided by MyPay was created by IE Financial Services Ltd which claims copyright over it. Also included was a “To Whom it May Concern” covering letter enclosing training logs which MyPay relied on in support of its application which stated that IE Money Ltd, IE Finance Ltd, IE Property Lending Ltd, and MyPay comprise a designated business group under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

[31]	Ms Nicholson-Canning states that she proceeded to review MyPay’s application in full, which involved her reviewing all of the information that had been provided by MyPay in support of its application and which was considered as part of the first assessment, as well as all of the additional information that had been subsequently provided. She then considered the application afresh and against the criteria set out in the immigration instructions. As regards the June 2020 warning, Ms Nicholson-Canning says that while the information provided by MyPay confirmed that it was part of the group of companies, the fact that it existed within a corporate group did not impact her decision-making. She explains that the information in the

warning related to the unwillingness of the named companies to provide documentation relating to the financial position of specific companies, and as the immigration instructions require an applicant seeking accreditation to satisfy INZ that it is in a sound financial position, she was required to consider MyPay’s own documentation and assess its individual financial position. Ms Nicholson-Canning says therefore that irrespective of the warning and its contents, she was required to focus on and consider MyPay’s financial position, and the only effect that the warning had on that process was whether or not her assessment of the financial material provided mitigated or substantiated the concerns raised in the warning.

[32]	After reviewing MyPay’s financial information, she concluded that it may not be in a sound financial position based on its history of having net losses over the three financial years for which financial information was provided by the company as part of its application. Ms Nicholson-Canning notes that in response to the PPI letter dated 30 November 2020 in which INZ had requested MyPay to provide further evidence to demonstrate that it was in a sound financial position, MyPay had subsequently provided further information on 11 December 2020 and asked for the reconsideration to proceed. She says that by this process MyPay had been given an opportunity to provide further financial information to satisfy INZ that it was financially sound, and had 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 position as required by WR1.25, and she accordingly decided that the application should be declined.

[33]	Having made her decision, Ms Nicholson-Canning sent her assessment and decision for internal review in accordance with INZ procedure and the reviewers did not raise any concerns. Her decision was then notified to MyPay through its solicitors in her letter dated 13 January 2021.

Grounds of review

Material error of fact

[34]	The applicant’s first ground of review in its amended statement of claim alleges that the INZ decision makers responsible for making the first and second

decisions to decline the application made a material factual error by referring to and taking account of warning information on the INZ file relating to three unrelated business entities: IE Financial Services Ltd, IE Finance Group Ltd and IE Money Limited.

[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 the applicant at any stage during the events and the process undertaken prior to making the decisions to decline the application.

[36]	The applicant alleges that by taking the irrelevant and prejudicial information into 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 MyPay had provided evidence of having made genuine attempts to hire New Zealand employees, INZ nevertheless considered that because the applicant required its employees to be able to speak the Chinese language, it had not provided sufficient evidence to demonstrate having made genuine attempts to recruit New Zealanders for employment.

[38]	The applicant alleges that this comment or warning information was taken into account by the INZ decision makers when deciding to decline the applicant’s application for accreditation, and the information was not disclosed by INZ to the applicant. The applicant alleges that the information and/or comment creates a negative profile and impression of MyPay in relation to its application for accreditation. The applicant alleges that in the circumstances there was a real likelihood of bias against MyPay when the INZ decision makers made their decisions to decline the application for accreditation.

Breach of natural justice

[39]	Under this heading, the applicant says that INZ issued a second PPI letter on 30 November 2020 raising substantially the same matters as had been previously

raised in the earlier INZ letter of 3 August 2020, notwithstanding that the applicant had already responded to the first PPI letter by providing the information that had been requested. The applicant says that it was not advised by INZ that the information it had 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 the applicant had provided, failed to advise the applicant of any remaining concerns or issues and failed to give it an opportunity to respond to any specific issues of concern that had been identified.

[40]	The applicant alleges that by reason of INZ’s failure to afford it an opportunity to comment on and respond to any issue of concern which had been identified before proceeding to reconsider and determine the application for accreditation, the respondent acted in breach of the principles of natural justice.

Error of law

[41]	Under this heading the applicant notes that Immigration Instruction A1 requires all immigration officers to act in accordance with the principles of fairness and natural justice when deciding applications, which requires the observance of natural justice and the absence of bias.

[42]	The applicant further says that Immigration Instruction WR1.25.10 which sets out the process to be followed for the reconsideration of accreditation applications, does not authorise an immigration officer undertaking a reconsideration of a declined application to decline the application on grounds that had previously been assessed as having been satisfied.

[43]	That applicant therefore says that by declining the accreditation application on the grounds that criteria which had previously been found to have been satisfied were not satisfied, the INZ decision maker made an error of law by failing to comply with immigration 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 for accreditation 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 it was unreasonable for INZ to decline MyPay’s application on grounds which it had previously assessed as being satisfied. The applicant says that no sensible (reasonable) decision maker acting with due appreciation of their responsibilities could have reconsidered and declined MyPay’s application on grounds which had previously been assessed 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 of WR1.25.10 providing for an applicant to request reconsideration of a declined application imply that INZ’s reconsideration will be confined to the grounds on which the decision to decline the application was based and where there is further evidence provided by the applicant which might support a different conclusion which is favourable to the applicant.

[46]	The applicant says that the single ground on which the accreditation application was initially declined was based on INZ’s finding that the proportion of New Zealanders employed by the applicant did not appear to meet the requirements of WR1.25.5(c)(iii). The applicant claims that in these circumstances it had a legitimate expectation that INZ would carry out the requested reconsideration by reference to the single ground upon which its first decision declining the application had been based. The applicant says that by declining to reconsider the application on further and additional grounds the INZ decision maker breached the applicant’s legitimate expectation that the reconsideration would be conducted according to settled practice and consistently with the approach adopted by INZ when making its initial decision to decline the application.

Relief sought

[47]	By way of relief the applicant seeks an order quashing the two decisions of INZ which declined MyPay’s accreditation application. In relation to the breach of natural justice and apparent bias grounds, the applicant also seeks relief by way of an order declaring the comments and warnings to be unlawful and that they had been erroneously placed on the applicant’s file having no relevance to the application for accreditation. The applicant also seeks an order directing the respondent to undertake its consideration of the accreditation application by reference to the criteria applicable at the time the application was made and within one month of delivery of the Court’s judgment.

Submissions

The applicant

[48]	At the hearing of the application Mr Burley for the applicant advised that the applicant’s principal grounds are: the alleged breach of natural justice arising from INZ’s failure to disclose the existence of the three warnings on its file; bias; and breach of legitimate expectation that reconsideration of the application would be restricted to the criteria upon which the decision to decline the application was based in light of the further information provided by the applicant in support of the application for reconsideration.

[49]	As regards the warnings on the INZ file, the applicant notes that it only became aware of the existence of the warnings when the respondent made initial disclosure in this proceeding. The applicant says that until then it had no knowledge of the warnings and no knowledge that it was under investigation in relation to any concerns held by INZ regarding its commercial operations. The applicant submits that INZ erred by proceeding to carry out its assessment of the accreditation application without having disclosed the existence of the warnings which had been placed on the file, to the applicant, and further that the information contained in the warnings did not specifically relate to the applicant. The applicant notes that the information recorded in the warning regarding a site visit made by INZ staff to the applicant’s premises in 2018 differs significantly from the verification report relating to the site visit, and

further notes that although the INZ decision maker acknowledges having seen the warnings when undertaking her reconsideration of the application, she did not have regard to the verification report when reviewing MyPay’s application.

[50]	In its amended statement of claim MyPay alleges that the INZ decision made on 13 January 2021 to decline its accreditation application was made on the grounds that the requirements of immigration instructions WR1.25(c)(i) and WR1.25.5(j) were not met despite those criteria having been previously assessed by INZ as having been met. MyPay alleges that this decision to decline the application on the ground that it did not meet the requirements of WR1.25.5(j) placed reliance on information that had not been brought to MyPay’s attention and which as a consequence it had been given no opportunity to respond to.  MyPay  notes that  in INZ’s second PPI letter dated  30 November 2020 it  stated that  MyPay had responded to the  first  PPI  letter of     3 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 those amounts and other employee information in an Organisational Chart, employee payslips covering the period July to February 2020, and a relevant IRD document, in its letter INZ stated that it appeared that those documents had not been sent with MyPay’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 PPI letter were new and had not been raised previously by INZ. In response to this letter MyPay re-sent the information to INZ attached to an email on 3 December 2020, and thereafter heard nothing further from  INZ  until  it  received  the  INZ  letter  dated 31 January 2021 advising that the application had been reconsidered and declined. More specifically, MyPay says that it was not advised by INZ regarding the existence of any other concerns it had regarding the application and arising from its reconsideration of the application.

[52]	MyPay says however that upon discovery it obtained INZ’s internal electronic file notes (AMS notes) which had not been previously disclosed to it. MyPay notes that 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 is

accessed. MyPay notes that there were three warnings recorded on INZ’s MyPay file between the date on which the application was made and the date it was subsequently declined. It says that the warnings consisted of information that did not relate to MyPay 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 staff to office premises occupied by MyPay related to other businesses who MyPay was sharing 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 employer financial information to assess employer sustainability relating to an application for a variation 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 through its telephone “Crime Stoppers” channel. MyPay says the warning relates to information received from an anonymous source and it has not been verified and no offending 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 the pop-up warnings on the INZ file, it had no knowledge of the warnings and no reason to suspect that it was or had been the subject of INZ investigations regarding its commercial operations. MyPay notes that in her affidavit Ms Nicholson-Canning confirmed that she saw the warnings when she accessed the file during the course of conducting the reconsideration assessment, but says that although she saw the warning she did not refer to the verification report which related to the warning and which states that the site visit was undertaken in relation to several other businesses: LJ Capital Management Ltd; IE Money Ltd; IE Technology Ltd and IE Financial Services Ltd. The employees interviewed at the premises by INZ staff were not MyPay employees and the verification report only refers to MyPay as being “[a]lso at this address”. However, MyPay submits that by looking into the corporate structure of the group of companies who each had the same common director as MyPay, the immigration officer (Ms Nicholson-Canning) engaged in a process of considering and taking account of information regarding MyPay that the applicant was not aware would be considered in relation to its accreditation application.

[55]	As regards the second AMS file warning which related to INZ’s request for employer information relevant to an employee’s application to vary their visa, MyPay says it was wholly irrelevant to MyPay’s accreditation application. In relation to the anonymous “Crime Stoppers” sourced information, MyPay says that the warning itself states that the information has not been verified and has not been assessed. The applicant says the warning therefore contained no information that could reasonably be regarded as adverse to MyPay and relevant to INZ’s reconsideration of its application. In this regard the applicant notes that INZ’s guidelines to its staff regarding the placement of warnings and alerts on its files for border control purposes states that information that is incomplete or has not been verified should not be placed on the “alert” field of the file as doing so implies that the information is accurate and factual and can be acted on. MyPay says that although those guidelines apply to border control matters, the same principle is equally applicable to information placed on INZ’s files relating to accreditation and similar applications.

[56]	MyPay submits that in relation to INZ’s reconsideration of its accreditation application 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 its letter 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 since 31 October 2021, and employers wishing to hire migrant employees are presently unable to do so until the new AEWV regime is reactivated on 4 July 2022. The applicant says that as a result of its accreditation application being declined its business has been severely affected because of its inability to employ staff with highly specialised technical and language skills to conduct its technology based financial business in New Zealand.

The respondent

[58]	Mr Paterson for the respondent notes that the accreditation application process is a non-legislative administrative process established by INZ which is provided for by immigration instructions promulgated by INZ. The immigration instructions are

therefore guidelines for both the applicants and INZ officers determining accreditation applications and they have no legal force. The respondent submits that reconsideration of an application for accreditation appropriately involves a fresh appraisal of an application that has already been determined.

[59]	The respondent further submits that the reconsideration process provided for in INZ’s immigration instructions contemplates a full reconsideration of the original application, and immigration officers conducting the reconsideration are themselves required 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 by an applicant seeking reconsideration of a declined application, there is nothing in the guidelines which suggests that an immigration officer carrying out a reconsideration is limited to addressing the matters engaged by the new information.

[60]	As regards the warnings on INZ’s AMS system, the respondent submits that the placement of warnings on the file in order to bring certain matters to the attention of immigration officers dealing with the file which may affect the risk assessment in relation to their decision-making is consistent with INZ’s statutory function of managing New Zealand’s immigration in the national interest and protecting the integrity of the immigration system.

[61]	The respondent submits that the existence of the warnings and the reference to them by the second immigration officer, Ms Nicholson-Canning, when undertaking her 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 a notification system relevant to general immigration matters relating to an INZ client rather than as regards a specific issue or application. She said that there were often good reasons why INZ would not disclose the existence of the warnings as a matter of standard practice such as the need to protect anonymous sources and informants and where their identification could undermine INZ’s ability to carry out its function by using the AMS warning system as an intelligence gathering tool. Here the contents of the warning information was not considered to have any material bearing on the issues arising in relation to the reconsideration or to be potentially prejudicial information which 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 first warning (dated 10 June 2020 regarding the site-visit in May 2018), and that the information contained in the warnings did not affect her determination of the reconsideration as while the warning indicated unwillingness on the part of other corporate entities to provide financial information, MyPay had provided the requested financial information which enabled the immigration officer to carry out the assessment required by the guidelines.

[62]	The respondent says that INZ’s failure to disclose the existence of the warnings to MyPay did not amount to a breach of natural justice. The respondent again notes that Ms Nicholson-Canning has stated that she did not consider the warnings and their contents to be material or relevant to her reconsideration of the application, and in those 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 was essentially administrative in nature and came within INZ’s core executive function on behalf of the Crown to control immigration into New Zealand. Moreover the decision did not affect the rights or immigration status of any individual, but rather the commercial interests of MyPay. The respondent submits that in that context the requirements of natural justice did not require the disclosure of the warnings to the applicant and INZ’s failure to do so should not vitiate the decision to decline the application 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 was exercising a quintessentially administrative decision-making power. The respondent notes that the accreditation application process is a simplifying administrative modification of the standard visa application assessment and granting process. The accredited employer effectively acts as a proxy for INZ’s usual visa application evaluation and granting process. To ensure the ongoing suitability and compliance of accredited employers, accreditation is time-limited to a period of two years, whereupon it must be renewed with a fresh application which satisfies all the requisite criteria. INZ may also audit an employer to ensure that they continue to meet the accreditation criteria, and may revoke accreditation where those requirements are not being met.

[64]	The respondent submits that the apparent bias test applicable in this context is appropriately calibrated having regard to the function being performed by INZ in exercising the power and executive prerogative of the New Zealand government to determine who may enter and stay in New Zealand. The respondent says that when the test for bias is considered and calibrated by reference to that context a fair-minded observer would not reasonably apprehend that immigration officers would not be capable of bringing an impartial mind to the determination of an application for accreditation after having viewed the AMS warnings on the MyPay file.

[65]	In relation to the legitimate expectation ground, the respondent submits that the statement made by Ms Nicholson-Canning in her letter of 30 November 2020 in which she commented that “the original decision was correct” did not mean that INZ was impliedly promising that it would not reassess the whole of the application against all four criteria in WR1.25(c) when undertaking a reconsideration of the declined application. The respondent submits that when that phrase is read in context of the letter of 30 November 2020, is it quite clear that the immigration officer was advising that the application as a whole would be reconsidered and that the reconsideration would not be limited to the respect in which the original application had been found to be deficient.

[66]	As regards the applicant’s ground of review alleging a breach of duty to act consistently, the respondent submits that the applicant’s submissions misapply the principles underpinning the duty to act consistently. The respondent notes that it is not a duty that requires two different but equally empowered decision makers to make the same decision for the same reasons in relation to a particular case, but rather a duty that ensures that the law is applied consistently to all persons so as to achieve consistency of outcomes. The respondent says that here where the second INZ decision maker, Ms Nicholson-Canning provided a reasoned decision as to why she declined the application and why she was not satisfied in respect of certain of the requisite criteria relating to the financial soundness of the applicant, there was no breach 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 error

of fact constituting an error of law in the decision making of the immigration officer who undertook the reconsideration of the application and made the decision to decline it. The respondent submits that as the AMS warnings were not material to the reconsideration of the application and were not taken into account as being relevant to the decision, the existence of the warnings and the fact that they were known to the decision maker does not amount to a material mistake of fact such as would constitute an error of law.2

[68]	And in response to the applicant’s ground of review alleging that the decision made by Ms Nicholson-Canning to decline the application was unreasonable, the respondent submits that the applicant has failed to show that simply by taking a different 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. The respondent says that the decision to decline was made on the basis of a reasonable and justifiable assessment of the evidence supplied by MyPay and the relevant criteria set out in WR1.25(c), and it was clearly a conclusion and decision that was open to her to make. The respondent says that the decision to decline the application was not one that 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 makers make decisions fairly, reasonably and in accordance with the law. The Supreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue explained:3

A central aspect of [the constitutional responsibility of the courts] is to ensure that when public officials exercise the powers conferred on them by Parliament, they act within them. Judicial review is the common law means by which the courts hold such officials to account. It provides the public with assurance that public officials are acting within the law in exercising their powers, 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 NZLR 153 at [3] (footnotes omitted).

[70]	Judicial review involves an examination of the manner in which the decision was made. It is not an appeal on the merits by way of a de novo hearing in which the court 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 and requirements for accreditation have no statutory basis under the Immigration Act 2009. The accreditation process is therefore an administrative process with the immigration instructions being promulgated by INZ for the purpose of providing guidelines to applicants and INZ immigration officers as to the criteria that are required to be met by an applicant seeking accreditation. The immigration instructions not only provide guidance to applicants and INZ officers as to the criteria that will be applied and the procedures that will be followed, but also ensure that applications will be assessed and determined by reference to the same criteria and that applicants are given an opportunity to provide the relevant supporting information before their applications are determined. In relation to each of the four stipulated criteria the immigration instructions also set out a list of factors which the immigration officer may take into account in determining whether the applicant has satisfied that particular criterion.

[72]	Guidelines such as those contained in the immigration instructions are not to be 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 their purpose and the statutory context and function in which they have been promulgated.4

Discussion

[73]	As I noted earlier, at the hearing of this matter Mr Burley advised that the application was principally based on the breach of natural justice ground, and the failure of INZ to disclose the existence of the warnings on its AMS file, with the result that MyPay had no knowledge of the warnings and no opportunity to be heard and make submissions or present any further evidence before either the initial decision declining 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 the accreditation application was the reconsideration decision made following MyPay’s request for reconsideration of its application and notified to MyPay in INZ’s letter of 13 January 2021.5 This was a separate decision by a different immigration officer than the one who was responsible for making the first decision declining the application dated 23 September 2020. The second immigration officer (Ms Nicholson-Canning) reconsidered the application afresh and addressed all of the evidence which had been presented by MyPay in support of its application and assessed the application against all of the four criteria contained in WR1.25. Having regard to this reconsideration process and the decision made to decline the application that resulted from it, there is no 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 accreditation application.

Scope of the reconsideration assessment

[75]	MyPay submits that INZ’s reconsideration of the application was limited to the matters 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 decision to decline the application was notified to the applicant’s solicitors. In that letter INZ advised that it was not satisfied that MyPay’s application met the requirements of WR1.25.5(c)(iii) which requires the applicant to demonstrate their commitment to training and employing New Zealand citizens and residence class visa holders by satisfying the immigration officer assessing their application that they have made genuine attempts to recruit New Zealand citizens or residents to fill any vacancies, and that advertised vacancies accurately reflect the position and salary or wages of the employment positions they wish to fill. MyPay says that the immigration officer who undertook the reconsideration of the application was therefore not able to consider the whole of the application against all of the criteria, and was restricted to the single issue on 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 v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [8].

[76]	In Park v Chief Executive, Department of Labour, Heath J considering s 31 of the Immigration Act 1987 which provided for “Reconsideration where application for another temporary permit is declined”, observed:6

[17]	The term “reconsideration” is not defined in the [Immigration Act 1987]. Nor has it been the subject of judicial definition. However, the meaning of the term is clear. The statute avoids the language of “appeal” or “review” and, instead, employs the term “reconsideration”. That term plainly envisages a fresh appraisal of an application that has already been determined.

[18]	There was no real dispute between [counsel] on the meaning of the term “reconsideration”. I hold that the obligation on the immigration officer conducting the “reconsideration” is to consider afresh the original application on the basis of all information provided, including new information responding to the grounds upon which the original application was declined and 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 applicant whose 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 those criteria or matters which INZ considered were not satisfied by the applicant when it was initially assessed. The natural and ordinary meaning of “reconsideration” means to consider something again. The matter to be reconsidered is the application for accreditation which has been declined.

[78]	While the immigration instructions set out in WR1.25 do not have any legal status, they are nevertheless guidelines which are consistent with the purpose of the Immigration Act 2009 as set out in s 3:

(1)	The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2)	To achieve this purpose, the Act establishes an immigration system that—

…

(e)	includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—

(i)	enable immigration officers to gather information in relation to visa holders, employers, and education

6	Park v Chief Executive, Department of Labour HC Auckland CIV 2006-404-1308, 29 May 2006.

providers to determine compliance with obligations in respect of the system; …

[79]	It is also relevant to note that WR1.25.10 provides for an applicant to seek reconsideration of their declined application where new information is promptly provided within 14 days of the decision declining the application. The requirement for “new information” ensures that unless there is further information relevant to the application that should be considered, there will be no basis for a reconsideration to be undertaken. This ensures that applicants are unable to seek repeated reconsiderations of their applications and waste the time and resources of INZ and its immigration officers.

[80]	The provisions of WR1.25.10 which provide for an applicant for accreditation to seek “reconsideration” of their declined application are consistent with the purpose of the Act. A reconsideration under WR1.25.10 which involves INZ considering the matter afresh in light of all of the information provided by the applicant in support of their application and all of the criteria set out in WR1.25(c)(i)–(iv) is consistent with the objective of ensuring that the applicant who is a party engaging with the New Zealand immigration system satisfies an immigration officer that it complies with the immigration requirements. It would make no sense whatsoever for an immigration officer conducting a reconsideration to be restricted to considering only those matters upon which the application had previously been declined and in respect of which further information had been provided. Accreditation status is an important and significant responsibility conferred on successful applicants, and before accreditation status is granted INZ must be satisfied that the applicant meets all four criteria. That requirement applies throughout the entire process by which an application is initially assessed and determined, as well as when an application is reconsidered, should that occur. Where fresh issues arise in the course of a reconsideration which may result in the application being declined and which have not previously been identified to the applicant, the use of the PPI letter process will ensure that applicants are given an opportunity to comment and if necessary provide further relevant information addressing those fresh issues.

[81]	For those reasons I find that INZ and the immigration officer conducting the reconsideration was not precluded from considering the whole of the application and

whether it satisfied all of the criteria set out in WR1.25(c). I accordingly find that the immigration officer who conducted the reconsideration assessment acted lawfully and made no error of law by assessing the application by reference to all of the criteria set out in WR1.25(c).

The AMS warnings and natural justice obligations

[82]	The requirements of natural justice are contextual and will vary having regard to 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. They are alternative descriptions for a single but flexible concept whose content is “always contextual”. The requirements vary according to the power that is exercised and the circumstances of its use, including the effect of the decision on personal rights or interests. A decision may be allowed to stand where a breach of natural justice has little or no effect on the applicant’s substantive rights. The requirements of natural justice are “flexible”, “adaptable”, and “context specific”, and cannot be neatly tabulated: “This is an area of broad principle, not precise rules”. …

Determining the requirements of natural justice is a holistic exercise. The courts will look at the matter “in the round” to determine whether the process was fair. Higher standards of fair treatment are required where a decision has significant consequences, or bears the [hallmarks] of adjudication affecting rights. …

[83]	Brennan J sitting in the High Court of Australia in Kioa v West observed:8

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.

[84]	The recording of warnings by INZ is wholly consistent with its statutory functions and purpose of managing immigration, gathering information, and ensuring that those who engage with the New Zealand immigration system comply with its

7	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 or actions taken by INZ are not made or taken without the immigration officers carrying out those functions being notified of whatever the information is that has been noted in 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 by the warnings will not necessarily be relevant to decision-making being undertaken by immigration officers regarding the person or entity on whose file the warning has been placed. The evidence here also establishes that there will be instances where the source of the information justifies keeping the existence of the warning and its contents confidential.

[85]	The information contained withing the three warning notes on INZ’s AMS system and its MyPay file, was not materially relevant to any of the issues to be determined by  the  immigration  officer  reconsidering  the  application.  I  accept Ms Nicholson-Canning’s evidence and account of the use she made of the information contained in the three warnings.

[86]	The Court has been provided with the entire AMS notes, and a review of the information recorded in connection with the first warning shows that no information contained in the warning notes related to MyPay’s financial soundness either positively or negatively. Having reviewed the information related to the warning and having 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 the existence of the warning.

[87]	The second warning related to a matter that was also of no relevance or significance to the reconsideration process. MyPay was noted as being the employer and supporting company of an individual who had applied for variation of their visa conditions. There was nothing about that issue or in any of the information recorded in relation to that warning which had a bearing on the reconsideration decision.

[88]	The third warning contained information from an anonymous source received by the Police on its “Crime Stoppers” telephone line on 12 October 2020. In what appears to be a template format, the warning notes state that the information had not

been verified and it was awaiting assessment, and immigration officers were requested not to disclose the information as doing so could impact on an investigation or compliance activity. The warning related to a matter which may or may not have warranted investigation, and which had not been evaluated or verified.

[89]	Relying on S v Commissioner of Police, Mr Burley submits that despite the difference in the severity of the consequences of the warnings between the cases, the principles applicable to the disclosure of the warning in S are equally applicable to the warnings noted on INZ’s MyPay file and ought to have been disclosed.9 However, the nature of the warning given by the Police and recorded on their NIA database had significant consequences for the person to whom the warning was given. Here the warning was not given to MyPay, but was effectively an alert to INZ staff to note the contents of the information provided with the AMS “warning” when carrying out work in connection with the MyPay file.

[90]	To summarise: the creation and placement of the warnings on INZ’s MyPay AMS file was in accordance with INZ’s purposes and statutory responsibilities and not unlawful. The warnings and such associated information recorded with them had no bearing on the issues that arose in relation to the reconsideration and having regard to the anonymous and unverified nature of the information there was no obligation upon INZ to disclose it to MyPay in the context of the reconsideration process then underway.

[91]	I accordingly find that the requirements of natural justice were not breached by the non-disclosure of the existence of the warnings and their contents to MyPay prior to the reconsideration decision being made by Ms Nicholson-Canning and INZ to decline MyPay’s application.

Bias

[92]	The principles and nature of the rule relating to bias are succinctly explained by Professor Joseph:10

9	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 is fundamental. It demands impartiality in decision-making in order to do justice between parties and maintain public confidence in the administration of justice. 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 be seen to be done.”

…

“Bias” is a predisposition resulting from a prejudice or preference towards one of the parties or their case, or from a personal interest or relationship material to the case. Under Lord Hewart’s axiom, the predisposition may be actual or apparent. A decision-maker may have either an actual bias, or some interest or preference/prejudice that engenders a reasonable apprehension that it may influence the outcome of the case.

…

The dividing line between permissible and impermissible partiality shifts with the context. The content of the bias rule is flexible, varying with the factual and legal circumstances of the case. It is at its most demanding when applied to the judiciary, and at its least demanding when applied to informal, low-level administrative bodies. The test for apparent bias reflects the standards and expectations of the fair-minded lay observer: would the lay observer, having been fully informed of the facts, reasonably suspect that the decision-maker may have been biased? The factual basis of a bias allegation must be carefully made out. …

[93]	Here MyPay says that the evidence shows that the immigration officers, and in particular Ms Nicholson-Canning, took the warnings and associated information into account when making the decision to decline the application, and that information “created a baseless negative impression of MyPay in the minds of those officers, and accordingly, a bias against MyPay in the decision-making process”.

[94]	There is however no evidence to suggest, let alone establish, that the immigration officer responsible for making the operative decision was biased or that there is any appearance of possible bias on her part. The decision which was made was reasonable and arrived at following a rational analysis of the supporting information provided by MyPay and available to the decision maker. The reconsideration decision-making process was not undertaken until after the applicant had been given an opportunity to provide all and further supporting information and after being given an opportunity to respond to the issues of concern identified in the PPI letters. Furthermore, the decision-making process did not occur until after the issue of whether MyPay had in fact provided some further supporting information in

response to the 30 November 2020 PPI had been satisfactorily resolved and after MyPay had re-sent the information to INZ for consideration as part of the reconsideration 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 be enough to cause a fully informed and fair-minded lay observer to suspect the officers of either being actually biased against MyPay, or give rise to apparent bias. That is particularly so given the evidence of Ms Nicholson-Canning, which I accept, that the information contained in the warnings had no bearing on the issues that arose in relation to the reconsideration application. The applicant is unable to point to any evidence which would lead a lay observer being fully informed of the facts, to reasonably suspect that the immigration officer’s reconsideration decision may have been affected by bias.

Legitimate expectation & duty to act consistently

[96]	The applicant says that following the first decision declining its application it had a legitimate expectation that INZ would thereafter conduct the requested reconsideration by reference to the sole ground upon which its first decision declining the application had been based.

[97]	For an enforceable legitimate expectation to arise an applicant must show that the 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 the reconsideration decision made any representation or promise to MyPay to the effect that it would limit the reconsideration to the matter on which it based its initial decision to decline the application. As I have earlier explained, there is nothing either express or implied in the terms of WR1.25 to indicate that a reconsideration under WR1.25.10 would be restricted to those issues on which the original decision declining the application was based. Furthermore, I note that in the immigration officer’s PPI letter of 30 November 2020 she said:

While the original decision was correct, based on the new information provided with the reconsideration application the reason for the decline no longer appears valid.

Despite the above – I have noted further concerns that were not fully addressed in the initial application for accreditation therefore, these will need to be addressed fully before a final decision can be made. These concerns are outlined below …

[98]	In these circumstances it is clear that neither the terms of WR1.25 or anything said or done by INZ’s immigration officers in their dealing with MyPay provide any basis for a legitimate expectation that INZ would not consider any further or other issues in the course of its reconsideration than the matter upon which it had based its initial decision declining the application.

[99]	The applicant’s claim in which it alleges a breach of duty to act consistently is misconceived. I agree with the respondent that the duty does not require different decision makers to reach the same conclusion on the same information, for the same reasons. The duty relates to the obligation on decision makers to treat all parties the same by reference to the same standards and criteria when making decisions affecting their rights and interests. Here the second immigration officer who conducted the reconsideration assessment was not limited to consideration of the sole issue on which the first assessment decision was made declining the application. The second immigration officer reconsidering the previously declined application considered the additional information which had been provided by MyPay and reconsidered all of the criteria in respect of which she was required to be satisfied before it was appropriate to grant the application. There was no obligation upon her to reach the same conclusion as had been reached by the immigration officer who undertook the first assessment as regards the criteria that she was required to be satisfied on before granting 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 unreasonable for INZ to have reconsidered and declined the application on a basis that had previously been assessed as having been satisfied. MyPay says that no sensible

decision maker with due appreciation of their responsibilities could have arrived at that decision to decline the application on a basis that had previously been found by INZ 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 the party challenging the decision to show there to have been no evidence to support the challenged conclusion, or as a decision in which the evidence is inconsistent with and contradictory of the determination, or one in which the true and only reasonable conclusion contradicts the determination.

[103]	In Hu v Immigration and Protection Tribunal, Palmer J said: 13

I consider the Supreme Court’s established reformulation of the Edwards v Bairstow test of when a finding of fact constitutes an error of law offers a better account of unreasonableness in judicial review than the tautologous words used in Wednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, 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 by Ms Nicholson-Canning to decline the application following her reconsideration of it was “unreasonable” or “irrational”, “insupportable” or “untenable”. The decision to decline the application following reconsideration was well supported by evidence and was entirely rational and consistent with the evidence and information upon which it was based. The applicant has accordingly failed to establish this ground of its challenge 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 has challenged the INZ decision dated 13 January 2021 which declined its application for accreditation 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’s application for accreditation is accordingly declined.

[107]	The respondent having succeeded in opposing MyPay’s application is entitled to an award of costs.

[108]	Should the parties be unable to agree costs between themselves within five working days from delivery of this judgment, I direct that the respondent is to file and serve its costs memorandum with 10 working days following the date of delivery of this judgment. The applicant is directed to file its costs memorandum in reply within five working days following service of the respondent’s costs memorandum.

[109]	The costs memoranda of the parties are not to exceed three pages in length other than the heading page and any schedules or other annexures relating to disbursements.

[110]	Upon receipt by the Registrar of the costs memoranda, I shall determine the award of costs to the respondent on the papers.

Paul Davison J