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New Zealand Residence Review Board |
Last Updated: 10 October 2011
RESIDENCE REVIEW BOARD
NEW ZEALAND
AT WELLINGTON RESIDENCE APPEAL NO: 14876
Before: M A Poole (Member)
Representative for the Appellant: Alastair Wait
Date of Decision: 22 May 2006
Category: Business (Entrepreneur)
Decision Outcome: Section 18D(1)(a)
DECISION
INTRODUCTION
[1] The appellant is a 26-year-old citizen of Fiji. Included in this appeal is his wife, aged 27. They have a New Zealand born child.
[1] The appellant’s application under the Business (Entrepreneur) category of Government residence policy was declined because the appellant had not been in New Zealand for the two-year period required by policy. The issue for the Board is whether the New Zealand Immigration Service (NZIS) method of assessing the two-year period was fatal to the overall decision to decline the application.
BACKGROUND
[1] The appellant made his application on 16 May 2005.
[1] He had been issued a long-term business visa (LTBV) on 10 October 2002. He came to New Zealand, and was granted a long-term business permit (LTBP) on 17 November 2002.
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[5] The appellant claimed to have a 25% shareholding in ABC Packaging, a company co-owned with his parents.
[5] On 13 June 2005, the NZIS wrote to the appellant, notifying him that he was not regarded as having been self-employed in the business, until after 14 December 2003. Therefore, the “two year period” did not expire until 14 December 2005. The reason for the NZIS’ view was that, although the appellant had first entered New Zealand on 17 November 2002, between that date and 14 December 2003, he had spent a total of only 69 days in the country. Further, the NZIS noted, he had not spent any significant time in New Zealand after 14 December 2003.
[5] The NZIS also noted that the appellant had produced no evidence of the purchase of his shareholding in ABC Packaging. It sought information about his “stepsisters” who he had omitted to list on his application. (The Board notes in fact that this appears to have been an error on the part of the NZIS, as the appellant has no stepsisters.)
[5] On 7 July 2005, the NZIS received submissions, which purported to be in response to a letter of 4 July. The Board concludes that this is an error, as it can find no letter from the NZIS of that date. Further, the content of the letter of 7 July 2005 appears to address the issues raised in the NZIS’ letter of 13 June.
[5] The appellant’s representative noted that a copy of the share register of ABC Packaging was attached, that the appellant’s shares had been transferred to him on 31 October 2002 (prior to his arrival in New Zealand), and further, expressed concern at the NZIS’ confusion about the appellant’s family members. The representative argued that the appellant had a legitimate expectation that the policy definitions set out would be interpreted consistently and that when the NZIS computer records state that the appellant came to New Zealand on an LTBV, that those records would not be “second guessed” by another immigration officer.
[7] On 11 July the NZIS conducted an assessment of the appellant’s case. The application was declined.
NZIS ASSESSMENT
[11] In
its letter dated 13 July 2005, the NZIS advised the appellant of its decision to
decline his application.
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[12] The final NZIS assessment of his application, a document entitled “Write Up Entrepreneur”, reads (verbatim):
“...
Applicable Policy:
LTBV was approved on 12 September 2002. Because the applicant was
approved for a long term business visa prior to 20 November 2002, the entrepreneur policy that is applicable to this application is that effective prior to that date.
Business outline:
[The appellant] purchased a 25 percent share in his parents company [ABC] PACKAGING LTD in New Zealand on 20 November 2002 for a consideration of $100.00, refer Share Transfer Certificate (TAG AA)
The Shareholding in the Company is as follows:
[Appellant’s father] 38 Percent
[Appellant’s mother] 37 Percent
[The appellant] 25 Percent
The business is situated at [Address given].
The business is a distribution/retail operation formed to distribute plastic products manufactured in Fiji by [DEF] Industries Limited.
Establishment in New Zealand:
BD3.1 Criteria for successfully establishing a business in New Zealand, Effective 26/07/1999
A principal applicant* will be considered to have successfully established a business in New Zealand if:
PA has provided:
I consider that [the appellant] has purchased a 25 percent share in an established business in New Zealand, [ABC] Packaging Ltd.
I do not consider that [the appellant] has been self employed in his business, in New Zealand, for a period of two years, due to [the appellant] not spending any significant time in New Zealand until 14 December 2003. NZIS movement records follow, which shows that in the one year prior to 14 December 2003, [the appellant] spent a total time in NZ of 69 days. I do not consider that this meets the intention of NZIS policy BD3.1 (b).
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I consider that [the appellant’s] self employment in New Zealand commenced on 14 December 2003 and as such will not meet NZIS policy BD3.1 (b) until 14 December 2005.
... Summary
I consider that the applicant fails Entrepreneur Policy due to not meeting NZIS Policy BD3.1 (b), in that I do not consider that [the appellant] has been self employed in New Zealand for a period of two years.
It should be noted that [the appellant’s]
Long Term Business Visa is valid until 10 October 2005. As such, he has an opportunity to apply for a Long Term Business Visa Renewal, which if approved will provide him with sufficient time to then meet the requirements of Entrepreneur Policy under BD3.1(b).”
GROUNDS OF APPEAL
[13] Section 18C(1) of the Immigration Act 1987 (“the Act”) provides:
“Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that –
(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or
(a) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered.”
[14] The appellant appeals on the basis that the NZIS refusal was not correct in terms of the Government residence policy.
[15] In support of the appeal, the appellant’s representative provides submissions, dated 26 July 2005. As relevant, those submissions are addressed later.
ASSESSMENT
[16] The Board has been provided with the NZIS files in relation to the appellant and has also considered the submissions and documents provided on appeal.
[17] The application was made on 16 May 2005. The
appellant’s application
was declined because the NZIS calculated that
the “two year period”, which he
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was required to have spent in the country actively involved in the management and operation of the business in which he had purchased a 25% shareholding, had only begun on 14 December 2003. Therefore, a full two-year period had not run at the time the appellant made his application.
[18] The policy in effect on the date the application was made required: “BD3.1 Criteria for successfully establishing a business in New Zealand
A principal applicant* will be considered to have successfully established a business in New Zealand if:
BD3.5 Definitions
...
BD3.5.5 Self-employment
Effective 26/07/1999”
[19] The appellant first entered New Zealand on his LTBV on 17 November 2002. However, between that date and 14 December 2003, he had spent only 69 days in New Zealand.
[20] The NZIS concluded that the two-year period, in relation to his lawful active involvement in the management and operation of ABC Packaging, had commenced on 14 December 2003.
[21] That assessment was wrong. On that point, the Board agrees with the appellant’s representative’s submissions, that the NZIS has no authority to arbitrarily pick a particular date as being the point at which the two-year period began to run, on the basis of the time spent here prior to that date. That is certainly the case here, where the arbitrary date worked to the appellant’s disadvantage, in that it led to a conclusion that the two-year period had not yet expired, making his application premature and thus declined.
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[22] The appellant entered New Zealand on his LTBP on 17 November 2002. The appellant’s shareholding in ABC Packaging had been transferred to him on 31 October 2002. He was, he claimed, employed from the time of his arrival in New Zealand in the company.
[22] Calculating from 17 November 2002, the “two year period” required by policy had passed by 17 November 2004, some six months before the appellant actually made his application.
[22] Between 17 November 2002 and the date of his application, namely 16 May 2005, the appellant spent approximately 513 days out of a possible 30 months, out of New Zealand.
[22] Despite the NZIS having declined the application because the “two year period”, by its calculations, did not expire until seven months after the application was made, the Board finds the appellant was nonetheless put on notice of the concern about the amount of time he had spent out of New Zealand. Although the letter of 13 June 2005 incorrectly pursued the issue of the time at which the two year period began to run, it is clear that the arbitrary start date for the appellant’s two years was conceived and applied because of the amount of time the appellant had been absent from New Zealand.
[22] Furthermore, the relevant policy criteria were set out in the letter, and the NZIS computer records of the appellant’s movements were also provided to him, in which are recorded the number of days the appellant spent here during each visit.
[22] In reply, that appellant’s representative argued only that the appellant had a legitimate expectation of the AMS records not being “second guessed”, and of the policy being interpreted “consistently”.
[22] On appeal, the appellant’s representative argues that immigration policy has not prescribed the length of time an applicant must spend in New Zealand to meet the requirements of paragraph BD3.
[22] The representative argues that in the modern world, employment for an entity within New Zealand could include activity both in New Zealand and overseas. The NZIS had accepted that the business was a retail operation formed to distribute plastic products manufactured in Fiji by the appellant’s family business.
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[30] The representative draws the Board’s attention to decisions of the then-Residence Appeal Authority, (Residence Appeal No 13519 (27 June 2003) and Residence Appeal No 13564 (28 April 2003)), citing the latter as authority for the statement that “two years did not mean 48 weeks per year” and referring to the criteria, set out in Residence Appeal No 13519, to which the NZIS should turn its mind in assessing whether an applicant had his centre of business and domestic life in New Zealand.
[30] In relation to the appellant, the representative pointed out that New Zealand had “provided the centre of business and domestic life” over the period of his LTBP. Evidence in support of this claim was:
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[35] The Board has recently addressed the issue of the two-year period (see Residence Appeal No 14093 (27 September 2005), Residence Appeal No 14354 (8 February 2006), Residence Appeal No 14789 (21 February 2006) and Residence Appeal No 14914 (21 February 2006)). In these decisions, the Board has reiterated the detail of the Business (Entrepreneur) policy, in relation to the question of an applicant being in New Zealand for the two-year period.
[35] Whilst the policy must always be sufficiently flexible to allow people to be absent from the country for visits to their home country or holidays abroad, absences longer than a normal “holiday” period must generally be related specifically to the operation of the business in New Zealand. The longer an applicant spent overseas, the more compelling the reason for that absence, and its direct necessity to the operation of the business, would have to be.
[35] The appellant’s representative has argued that the appellant had a legitimate expectation that he did not need to be physically present in New Zealand throughout the full term of his LTBP, or indeed, for any specific number of days within that two-year period. The representative claims that this expectation was supported by the wording of the NZIS policy, promotional material published by the NZIS surrounding the introduction of the LTBV policy, the decisions of the Residence Appeal Authority (Residence Appeal No 13519 (27 June 2003) and Residence Appeal No 13564 (28 April 2003)), and finally the Business Migration Branch commentary (in its newsletter), on the findings of the then Authority in those decisions.
[35] The Board finds that no legitimate expectation was created by any of the events to which the appellant’s representative refers. Further, such an expectation could not be created in direct contradiction of the express requirements of policy.
[35] Whilst the appellant has not put forward submissions as to why he spent as much time out of New Zealand as he did, it would appear from submissions related to his father’s application that they remained in Fiji to run the “parent company” of ABC Plastics, whilst awaiting the grant of permanent residence in New Zealand. The appellant has put forward no further submissions on appeal as to why he was required to be absent from New Zealand for such a significant period of time.
[35] The Board finds that the NZIS decision to decline was correct in terms of the applicable Government residence policy. The Board reaches that conclusion notwithstanding the NZIS’ error in calculating the two years, because the appellant
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has clearly not been in the country for the requisite two-year period and, having been put on notice that his time out of the country was an issue, has provided no reason for it, other than claiming a legitimate expectation that he was not required by policy to spend that time in New Zealand.
Special Circumstances
[41] The Board has power pursuant to section 18D(1)(f) of the Act to find, where it agrees with the decision of the NZIS, that there are special circumstances of an appellant that warrant consideration by the Minister of Immigration as an exception to policy.
[41] Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances relevant positive and negative factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special.
[41] The appellant is a 26-year-old citizen of Fiji. His application was declined because, by the NZIS’ calculation, the two-year period during which he was to be actively employed in his New Zealand business had not yet expired. In fact, the decision to decline, on the basis that he had not been in the country for two years, was correct, notwithstanding the fact that the arbitrary calculation of the two-year period was not valid in policy.
[41] Also included in the appeal is his 27-year-old wife. The couple has a New Zealand-born child.
[41] The appellant is the co-owner, with his father and mother, of a plastic packaging manufacturing and distribution business in Auckland. That company appears to be a replica of a larger business established in Fiji involved in the manufacturing and distribution of plastic packaging.
[41] The documents provided in respect of the New Zealand-based company establish that it appears to be doing well although the Board notes that the appellant’s representative claimed that there were locally employed staff and/or consultants. So far as the Board can ascertain, the company employs three people; the appellant, his father and one other person. The appellant and his father both appear to have discharged their “employment” responsibilities from Fiji.
[41] The Board is mindful of the existence of a New Zealand-born child. That child’s rights are to be considered as a part of this assessment. See Tavita v
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Minister of Immigration [1994] 2 NZLR 257. The Board notes that, notwithstanding the fact that an unsuccessful appeal might require that child to return to Fiji with his parents, there is no question of the child losing its right of citizenship in New Zealand, (he having been born here in August 2004). Equally, there is nothing to suggest the child would suffer any disadvantage from growing up in Fiji with both his parents and his extended family, which operates the successful Fiji-based packaging company.
[48] The appellant indicates that his parents and one brother all reside in New Zealand. However, those family members do not currently have permanent residence and there are, it would appear, no other family members in New Zealand. The appellant’s wife’s family are all in Fiji. The Board notes that although the appellant’s father had indicated that he had a married daughter residing in Australia, the appellant has not indicated that he has a sister. The Board finds that the appellant has no familial nexus to New Zealand.
[48] Whilst acknowledging that the appellant and his father did successfully establish a small plastic packaging business in New Zealand, there is no evidence that the appellant’s circumstances are in any way special.
[48] The Board finds that the appellant does not have special circumstances. CONCLUSION
[48] This appeal is determined pursuant to section 18D(1)(a) of the Immigration Act 1987. The Board confirms the decision of the NZIS to decline the appellant's application for residence as correct in terms of the applicable Government residence policy. The Board does not consider that special circumstances exist which warrant consideration by the Minister of Immigration as an exception to that policy under section 18D(1)(f) of the Act.
[48] The appeal is unsuccessful.
M A Poole
Member
Residence Review Board
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URL: http://www.nzlii.org/nz/cases/NZRRB/2006/167.html