Mypay NZ v MBIE
| Jurisdiction | New Zealand |
| Judge | Paul Davison J |
| Judgment Date | 22 June 2022 |
| Neutral Citation | [2022] NZHC 1466 |
| Docket Number | CIV-2021-404-56 |
| Court | High Court |
| Year | 2022 |
UNDER Judicial Review Procedure Act 2016
IN THE MATTER of an application for judicial review
[2022] NZHC 1466
Paul Davison J
CIV-2021-404-56
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Judicial Review — application for judicial review of a decision of the respondent not to grant the applicant Accredited Employer Status — administrative process — interpretation principles of non-statutory guidelines — material error of fact — procedural impropriety — apparent bias — natural justice — error of law — legitimate expectation — Immigration Act 2009
J T Burley and K L Chiu for Applicant
C P Paterson and P J O'Boyle for Respondent
The application for judicial review was declined.
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
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.
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.
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.
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.
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.
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:
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(a) Human resources policies and processes.
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(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.
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(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.
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(d) Information detailing how the applicant intended to comply with the immigration regulations.
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(e) Information about workplace practices relating to the promotion of diversity.
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.
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.
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.
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.
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.
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...
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