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High Court of New Zealand Decisions |
Last Updated: 14 February 2019
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2018-404-001585
[2018] NZHC 3152 |
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UNDER
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The Judicial Review Procedure Act 2016
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IN THE MATTER OF
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An application for judicial review of a decision of the Immigration
Advisers Complaints and Disciplinary Tribunal
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BETWEEN
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YANG (JERRY) JIANG
Plaintiff
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AND
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IMMIGRATION ADVISERS
COMPLAINTS AND DISCIPLINARY TRIBUNAL
First Defendant
IMMIGRATION ADVISERS AUTHORITY
Second Defendant
TUARIKI DELAMERE
Interested Party
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Hearing:
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19 November 2018
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Appearances:
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T Simmonds for Plaintiff
T Thompson and T Witten-Sage for Defendants T Delamere (in person)
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Judgment:
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3 December 2018
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JUDGMENT OF VENNING J
This judgment was delivered by me on 3 December 2018 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: Crown Law, Wellington
Kendall Sturm & Foote, Auckland
Counsel: T Simmonds, Auckland
Copy to: T Delamere
JIANG v IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL [2018] NZHC 3152
[3 December 2018]
Introduction
[1] Mr Jiang was formerly a licensed immigration adviser. As such he was subject to duties and obligations under the Immigration Advisers Licensing Act 2007 (the Act).
[2] Mr Delamere made a complaint against Mr Jiang on behalf of Ms W, one of Mr Jiang’s former clients. The Immigration Advisers Authority (the Authority) investigated the complaint and referred the matter to the Immigration Advisers Complaints and Disciplinary Tribunal (the Tribunal). Following a hearing at which Mr Jiang gave evidence the Tribunal held three of five complaints against Mr Jiang proved.1 In the course of doing so the Tribunal found that Mr Jiang had provided a deliberately false explanation to the Tribunal regarding his ability to access Ms W’s client file (the adverse credibility findings).
[3] The Tribunal subsequently censured Mr Jiang, imposed a $5,000 penalty, ordered that he refund fees received from Ms W, and directed him to pay $1,500 compensation to Ms W.2
[4] Mr Jiang has appealed to the District Court against the decision of the Tribunal.
The appeal is limited to the sanctions imposed.3
[5] Mr Jiang also seeks judicial review of the adverse credibility findings against him. Mr Jiang is a barrister and solicitor. He is concerned about the impact of the findings on his career. He seeks an order quashing the adverse credibility findings of the Tribunal and referring the matter back to it for further and proper consideration.
[6] The Authority opposes the application for review. The Tribunal abides the decision of the Court.
[7] Mr Delamere appeared as an Interested Person. He generally supported the Authority’s position.
1 Delamere v Jiang [2017] NZIACDT 1.
2 Delamere v Jiang [2017] NZIACDT 8 at [24].
Background
[8] While at university studying law Mr Jiang acted as an immigration consultant. He was employed by Sea Consultants and Investments Ltd (Sea Consultants). On 12 October 2011 Mr Jiang lodged a student visa application for his client, Ms W. Immigration New Zealand (INZ) requested further information about the application on 27 October. On 22 November 2011 INZ declined Ms W’s application because the further information had not been provided.
[9] On 24 November Mr Jiang emailed INZ saying he had provided the further information sought and then, on 28 November, lodged a request for a visa under s 61 of the Immigration Act 2009 on behalf of Ms W. That application was refused.
[10] Mr Jiang then lodged an appeal on humanitarian grounds to the Immigration Protection Tribunal (IPT). The IPT declined the appeal and INZ issued Ms W with a deportation order requiring her to leave New Zealand by 11 February 2013. Ms W voluntarily left New Zealand on 9 February 2013.
[11] On 22 July 2015 Mr Jiang’s licence as an immigration adviser expired and his employment with Sea Consultants terminated. Mr Jiang completed his law degree and is working as a lawyer.
[12] On 17 September 2015, Mr Delamere, Ms W’s new immigration adviser, requested Ms W’s full client file from Sea Consultants. The file was not supplied. Mr Delamere raised the matter with the Authority. In December 2015, the Authority requested Ms W’s file from Mr Jiang under the provisions of the Act. On 14 January 2016 Mr Hallett, who had replaced Mr Jiang as an immigration consultant at Sea Consultants provided Ms W’s client file to the Authority. The file did not contain all the documents it should have if Mr Jiang had carried out his obligations under the Act.
[13] On 28 April 2016 the Authority notified Mr Jiang of his failure to provide a full file and the potential consequences for him.
[14] On 4 May 2016 Mr Jiang replied. He advised the Authority he no longer worked at Sea Consultants and had no access to Ms W’s file. On 19 May 2016 Mr
Jiang’s counsel confirmed that he had not worked for Sea Consultants since July 2015 but said he was trying to obtain the full file. Subsequently, counsel advised the Authority that Mr Jiang said he had no knowledge of the Authority’s request in December 2015 and could not comply with the request as he was no longer employed by Sea Consultants.
[15] On 16 January 2017 there was an oral hearing before the Tribunal. Mr Jiang gave evidence at the Tribunal hearing. When questioned by the Authority’s counsel Ms Thompson, Mr Jiang accepted that the shareholding in Sea Consultants was 100 per cent held by his mother and that on 25 July 2014 he had signed a consent form to be a director of Sea Consultants. He remained a director of the company until the matter was drawn to his attention.
The Tribunal Decision
[16] Mr Jiang faced five complaints:
(a) breach of clauses 1.5(a),(b),(c) and (d) of the Licensed Immigration Advisers Code of Conduct 2010 (Code): the requirements for written client agreements;
(b) breach of clause 1.1(a) of the code: relating to care, respect, diligence and professionalism;
(c) breach of clause 2.2(a), (b) and (c) and clause 1.1(a) of the Code: relating to unfounded immigration matters and a lack of care, respect, diligence and professionalism;
(d) negligence (failing to advise a client of the outcome of hearings); and
(e) breach of clause 3(e) of the Code: failure to maintain client records.
[17] Ultimately the Tribunal found the first, fourth and fifth complaints were made out but dismissed the other two.
[18] In the course of its decision the Tribunal made the adverse credibility findings which Mr Jiang challenges. The adverse credibility findings arose out of Mr Jiang’s failure to disclose he was a director of Sea Consultants and that his mother was a 100 per cent shareholder.
[19] The Tribunal made the following adverse credibility findings:
[35] ... Unfortunately, I have determined Mr Jiang did embark on a sustained course of action where he misrepresented the power he had to access the file and information relating to it.
...
[38] ... It is unbelievable that Mr Jiang thought that if his mother held documents, and he had not asked her for access to them he could honestly say he “is nonetheless doing what he can to obtain the relevant file documentation”. That statement is false and misleading on any view; and, Mr Jiang must have known that was so when he made the representation to the Authority through his counsel.
[20] After referring to a series of statements made by Mr Jiang the Tribunal noted:
[40] They are the key elements in a series of statements crafted to cause the Authority and the Tribunal to believe Mr Jiang’s only relationship with [Sea Consultants] was as an employee. Further, that he ceased employment with the company, and had no ability to influence it. I am left in no doubt that Mr Jiang crafted this false impression to hide the reality that he and his mother could exercise complete control over the company. When he instructed his counsel to say he was “doing what he can to obtain the relevant file”; he must have known he had not done that, as he had not even taken the obvious step of asking his mother. That evidence is independent of his memory as to being the sole director of the company.
[41] Given Mr Jiang’s misleading statements regarding his lack of access to the company and efforts to provide the file, I am satisfied Mr Jiang did know he was the sole director of the company. The claim is inherently implausible, and independent evidence establishes Mr Jiang was deceptive regarding other matters regarding his inability to produce his file. I must, accordingly, conclude the implausible explanation that he could not recall he was the director of the company is false.
[21] The Tribunal then considered Mr Jiang’s explanation that he would not have sought to mislead as the documents were a matter of public record before concluding:
[43] ... I find the claim Mr Jiang could not have attempted to mislead due to the risk of detection unpersuasive. The evidence that Mr Jiang deliberately misrepresented his ability to access his file and that he was doing his best to do so is overwhelming. With the benefit of hindsight, it is very common to see that detection of misrepresentation was likely, if not inevitable. In this
case, and many others, risking discovery can only be explained by folly, not innocence.
[22] The Tribunal considered it relevant that Mr Jiang knew his mother was a sole shareholder but had not asked her for access to Ms W’s file. The Tribunal found that Mr Jiang created a false impression to hide the reality that he and his mother could exercise complete control over the company. The Tribunal considered Mr Jiang’s conduct was deceptive and rejected his “implausible explanation” that he could not recall he was a director of the company. The Tribunal concluded that Mr Jiang was aware disclosure of the file would not support his position and had embarked on a dishonest attempt to pretend he could not access the entire file and constructed a false account that material parts were missing.
Grounds for review
[23] In support of the application for review Mr Simmonds submitted that Mr Jiang’s explanation that he overlooked being a director of the company was not given appropriate consideration or weight by the Tribunal when it made the adverse findings against him. The Tribunal was wrong to make the finding Mr Jiang had embarked on a sustained course of conduct to mislead it. In coming to that conclusion the Tribunal had erroneously failed to take account of, or to place sufficient weight on, the fact Mr Jiang’s role as a director and his mother’s role as a shareholder were matters of public record. It was inevitable that the company records would be checked. The only reasonable finding was that Mr Jiang would not have knowingly or deliberately attempted to mislead the Tribunal about his status and/or role within the company.
[24] Mr Simmonds submitted the Tribunal’s approach to evaluating the evidence was overly simplistic and incorrect. In only permitting for two alternatives the Tribunal had wrongly excluded from consideration the real possibility of a third conclusion, namely that, consistent with his evidence, Mr Jiang had in fact overlooked he was a director of the company.
[25] Mr Simmonds submitted the Tribunal’s findings as to credibility were unreasonable given the circumstances in the case, in particular:
- (a) it was never contended nor found that Mr Jiang had acted dishonestly in his dealings as an immigration advisor,
(b) in light of his explanation regarding the Companies Office records there was another finding clearly available to the Tribunal; and
(c) the adverse credibility findings were collateral to the Tribunal’s task of determining the complaints. They did not need to be made and should not have been made.
The Authority’s response
[26] In response Ms Thompson submitted the Tribunal’s credibility findings were relevant to evaluating the complaints that were made out. The findings were based on the evidence before it and the Tribunal was not plainly wrong to make the credibility findings.
[27] Ms Thompson also noted that judicial review is not an appeal and that the Tribunal’s findings were available to it.
[28] Mr Witten-Sage submitted the Tribunal did not fail to give consideration to the other alternatives, namely the possibility that Mr Jiang had forgotten about his directorship. He argued that the Tribunal fairly considered Mr Jiang’s explanation of events and it was open to the Tribunal to reject that evidence. He submitted the making of credibility findings was reasonable in all the circumstances.
Discussion
[29] Before considering the grounds of review, it is helpful to review the hearing process itself, and the way it unfolded.
[30] Mr Jiang was called to give evidence. He confirmed his written responses to the Authority’s original correspondence. In those responses Mr Jiang had said about Ms W’s file:
- that he had not worked for Sea Consultants in any capacity since July 2015 and therefore had not had access to Ms W’s file;
[31] At the outset of his cross-examination, and relying on documents obtained from the Companies Office, Ms Thompson put to Mr Jiang that Sea Consultants was actually his mother’s company and that she was a 100 per cent shareholder. Mr Jiang agreed with that. Ms Thompson then put to him that he was a director of the company. Mr Jiang said he did not believe he was but when shown the consent signed by him in 2014 he agreed he must be.
[32] Mr Jiang said that:
I must, I have forgotten that I actually gone through the process of agreeing to become a director of the company and this should have been rectified at the time I left. However, because it was a family run company it was not monitored to the extent which I would have held myself to if this was a differently run company.
As Mr Jiang also pointed out, the subsequent company office return for the company confirming his directorship had been completed by Mr Hallett who was the current immigration adviser employed by Sea Consultants.
[33] At the conclusion of Mr Jiang’s evidence the Tribunal then observed that, in his opinion, the fact Mr Jiang was a director and his mother a shareholder did not sit
particularly well with Mr Jiang’s claim that he did not have access to material. He said that:
I do have a response that is rather predicated on an inability to access this matter – Mr Jiang, because he is expected to be completely frank with us, the Tribunal, and that carries through to any other professional roles that he has, so this is not a trivial matter.
[34] There was a further discussion between the Tribunal and counsel and also Mr Jiang. The Tribunal then referred Mr Jiang to his response to the complaint and stated that:
Now on the face of it, that is an assertion that is intended to cause me to believe that you had no influence whatsoever over Sea Consultants. The truth that now appears is that your mother owned the company, you were the director of the company and it frankly concerns me a great deal to have that response to a professional disciplinary matter. And you, on oath, confirmed these statements this morning so that’s where it sits, not the only implication, as your counsel say, is (inaudible) it is one and it concerns me.
[35] The Tribunal then permitted counsel to discuss the matter further with Mr Jiang before proceeding.
[36] When the hearing resumed (after a nine minute adjournment) Mr Simmonds led further evidence from Mr Jiang to address the issue the Tribunal had raised, namely the Tribunal’s concern that Mr Jiang had been less than completely honest. Mr Jiang confirmed it was never his intention to mislead or deceive any of the parties. At the time he made the statement he was admitted to the High Court as a lawyer and was aware of his obligations to the Court, not to mention that he was aware of how serious matters of misrepresentation to a Court or Tribunal are. He repeated he had not been aware he was still listed as a director of Sea Consultants. Had he been so then he would have acted on that power to request the documents. He said it would not be something that he would be deliberately trying to hide because it could not be hidden as it was a matter of public record. Mr Jiang had also said
Just because she’s [his mother] a shareholder of the company doesn’t mean that she had a legal obligation to me her, Sea Consultants current or existing transactions, just as I will not tell her anything related to my work even though she’s my mother.
[37] The Tribunal then intervened again stating:
Mr Jiang, I think some reality is required here. You’ve just told me that it would be wrong to impinge upon your mother to disclose information. This is a complaint about your professional conduct. It is made by the regulatory authority and you’re telling me that you didn’t feel that you should pressure your mother to respond fully, despite the fact that it was leaving you in the lurch because you’re saying that she is withholding documents that would extricate you. Now that does not sit well with me. I’ll be quite frank with you.
[38] In response Mr Jiang made the point:
But the matter was that the documents which I received and which have confirmed by Mr Hallett was that all the documents that he could find at the company have been disclosed, he has disclosed to the Authority and he himself was also under legal obligation to do so.
He repeated:
I honestly can’t say what has happened since I left Sea Consultants in July 2015 because I did assume full-time employment elsewhere and I was not involved any further in the day-to-day running the company.
[39] From my reading of the transcript it seems clear that once the Companies Office records, which confirmed his mother’s shareholding and that he held the position of director, were put to Mr Jiang the Tribunal formed the view that Mr Jiang had deliberately set out to mislead the Authority and the Tribunal. The Tribunal remained of that view which led inexorably to the Tribunal’s adverse findings.
Was it necessary to make the adverse credibility findings?
[40] Mr Simmonds emphasised that Mr Jiang did not challenge the Tribunal’s decision insofar as it found the complaints proved. Mr Simmonds’ point was that it was unnecessary for the Tribunal to make the adverse credibility findings in order to find the complaints proved.
[41] Mr Witten-Sage submitted that the findings were central rather than collateral.
[42] I do not accept the defendants’ submission that it was necessary for the Tribunal to have found Mr Jiang to have been dishonest to find the complaints proved. Mr Jiang did not face a complaint of dishonesty under s 44(2) of the Act. The Tribunal
could have found the complaints he faced were made out without the need to make the adverse credibility findings.
[43] The first complaint was a failure to produce a client engagement letter.4 Mr Jiang’s evidence in relation to the first issue was:
My meeting with Ms W occurred over five years ago. Given the passage of time, I do not have an independent recollection of the meeting. Further, I have not worked for [Sea Consultants] in any capacity since July 2015 and therefore I have not had access to the file relating to Ms W. I can confirm however that throughout the time that I acted as an Immigration Adviser, I always carried out the same process when meeting with new clients.
[44] Mr Jiang was effectively relying on his standard practice. He then went on to describe his standard process, which included asking the clients to sign a standard agreement before he concluded:
There is no reason at all why I would have deviated from this standard practice with Ms W and therefore, even though I do not now recall the meeting and I have not had access to her file since becoming aware of this complaint, I do not accept that I failed to comply with Clause 1.5 of the Code of Conduct in her case.
[45] It would have been open to the Tribunal to find that, despite his standard practice, as Mr Jiang had no specific recollection on this issue and as there was no letter on the file he must have departed from that practice in this case for whatever reason, and had failed to provide the written client letter(s).
[46] The next complaint was of negligence, namely that Mr Jiang failed to advise Ms W of the outcome of the IPT’s decision. Mr Jiang’s response was that he had tried to contact her:
I believe that numerous attempts were in fact made to contact Ms W (both by telephone and letter) to notify her of the IPT decision between 26 November 2012 and 4 February 2013.
I very much regret that Ms W appears to not have been aware of the IPT decision when served with the deportation order on 4 February 2013, but in the circumstances I do not accept that I acted in a negligent manner.
4 Mr Delamere made the point that several client letters would have been required.
[47] Again, it was unnecessary for the Tribunal to find Mr Jiang had sought to mislead it to find this complaint proved. Mr Jiang accepted that he had not advised Ms W of the decision. The Tribunal could readily have found there was nothing in Mr Jiang’s evidence or on the file to conclude that he had taken reasonable steps to contact Ms W so that the complaint of negligence was made out.
[48] The final complaint was that Mr Jiang had failed to keep proper client records. Mr Jiang said:
The Authority’s request for the file belonging to Ms W was made approximately five months after I ceased acting as an immigration adviser, and equally, some five months after my employment with Sea Consultants had come to an end. I do not accept that up until July 2015 I failed to ensure that Ms W’s file was maintained or that I failed up until July 2015 to ensure that Ms W’s file was available for inspection.
[49] Again there was no need for a dishonesty finding. The Tribunal could have found that complaint proved as the file produced to the Tribunal, which Mr Jiang had been responsible for before he left Sea Consultants, was incomplete on its face. All that was required was a finding that the file produced to the Tribunal, which had been under Mr Jiang’s control at the relevant time he dealt with Ms W, was incomplete.
[50] Against that background, I turn to consider the specific grounds of judicial review. Given the limited right of appeal and the impact of adverse credibility findings the availability of judicial review assumes particular importance to Mr Jiang.
[51] Mr Simmonds confirmed Mr Jiang no longer pursued a general objection that the Tribunal had failed to observe the rules of natural justice.
[52] Mr Jiang’s claim for judicial review was formulated in three ways:
(a) the Tribunal was plainly wrong to make the credibility findings;
(b) the Tribunal gave insufficient or inadequate consideration to alternative explanations;
(c) the making of the adverse credibility findings was unreasonable in all the circumstances.
[53] Although the claim was formulated under those three heads the ultimate issue for the Court on this application for judicial review is whether the decision of the Tribunal to make the adverse credibility findings that Mr Jiang had embarked on a deliberate course of action to mislead the Authority and the Tribunal was an unreasonable, insupportable or untenable conclusion.
[54] A decision maker such as the Tribunal is bound to act “in accordance with law, fairly and reasonably”, per Cooke P New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries.5
[55] An error of law will support review.6 As to what may be an error of law, in Bryson v Three Foot Six Ltd the Supreme Court confirmed that an ultimate conclusion can sometimes be so insupportable – so clearly untenable – as to amount to an error of law so that proper application of the law requires a different answer.7
[56] As the Court said:8
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one 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”. Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test.
[57] Although Bryson concerned an appeal on a question of law, it nevertheless clarifies the circumstances which may amount to an error of law which could support judicial review.9 In Hu v Immigration and Protection Tribunal, Palmer J adopted the
6 Peters v Davison [1999] 2 NZLR 164 (CA at 181.
7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]–[26].
8 (footnotes omitted).
Court’s reasoning in Bryson to reformulate the test for unreasonableness in judicial review.10 He said:
[29] I consider the Supreme Court’s reformulation of Edwards v Bairstow offers a better account of unreasonableness constituting illegality in judicial review than the circular words 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.
[30] Lord Radcliffe’s three scenarios, encapsulated by the Supreme Court as an insupportable or untenable ultimate conclusion, also assist in identifying what constitutes a relatively narrow but usable concept of unreasonableness. A decision may be unreasonable if it is not supported by any evidence, or if the evidence is inconsistent with or contradictory of it, or if the only reasonable conclusion contradicts the determination. The first two of these involve the adequacy of the evidential foundation of the decision. The last involves the chain of logical reasoning in the application of the law to the facts: if there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful.
[58] The test for intervention where the alleged error of law concerns an inference has been similarly expressed. In The Motor Vehicle Dealers Institute Inc v Auckland Motor Vehicle Disputes Tribunal, Glazebrook J held that a court sitting in review of a decision will not interfere with an inference, even if stretched, unless it is so unreasonable that it is unable to be drawn.11 In Re Erebus Royal Commission; Air New Zealand Ltd v Mahon Lord Diplock said that findings of fact may be disturbed if:12
the reasoning by which the decision-maker justified inferences of fact that he had drawn is ... based upon an evident logical fallacy.
[59] Therefore, whether the ground of review is framed as an error of law, or as unreasonableness under Palmer J’s reformulation in Hu, the issue for this Court is whether the Tribunal’s chain of logic and reasoning from the established facts to the adverse credibility findings was so disconnected, or so stretched, that its findings may be said to be unreasonable and therefore unlawful.
10 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.
12 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 681.
[60] In the present case, there is evidence that Mr Jiang’s statement he had no capacity to comply with the Authority’s request for the file was wrong. As a director he did have the capacity to access the company’s records. But that undisputed fact does not logically lead to the conclusion that he deliberately set out to mislead the Authority and Tribunal.
[61] Against that general introduction I turn to the particular arguments raised.
Was the Tribunal plainly wrong to make the credibility findings it did against Mr Jiang?
[62] Mr Simmonds conceded the Tribunal needed to make findings to determine the complaints, but argued that while it had to grapple with the issues, it was “plainly wrong” to make the adverse credibility findings.
[63] In response, Ms Thompson submitted that the Tribunal is a specialist jurisdiction with its own rules around calling witnesses and hearing evidence and the Court should normally afford a margin of appreciation on technical assessments within the competence of a specialist Tribunal, especially if it has heard and evaluated evidence.13 Findings of fact are especially a domain where the deciding authority or tribunal must be the deciding authority.14
[64] However, the issue in the present case was one of Mr Jiang’s credibility and particularly the Tribunal’s reasoning process in rejecting Mr Jiang’s explanation for his oversight in forgetting he was a director. Apart from the advantage of seeing Mr Jiang while he gave evidence the Tribunal had no specialist expertise in assessing his credibility. No technical assessment was required.
[65] Next, Ms Thompson submitted that the Tribunal’s dismissal of Mr Jiang’s explanation was available to it and supported by the evidence. She noted that the concept of “plainly wrong” as a ground of judicial review involves a conclusion that the decision is outside the parameters of what may lawfully be done.15 She referred
14 Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (CA).
15 Taylor, above n 9, at 14–15.
to the following passage from the Supreme Court decision in Vodafone New Zealand Ltd v Telecom New Zealand Ltd:16
[53] Some caution is, however, required of the appeal court in assessing whether the decision-maker has reached an untenable conclusion on the facts. In Bryson this Court took notice of the observation by Lord Donaldson MR in Piggott Brothers and Co Ltd v Jackson that:
It does not matter whether, with whatever degree of certainty, the appellate court considers it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.
[66] Ms Thompson noted that Mr Simmonds had effectively conceded that, on the question it had posed for itself, the Tribunal had two alternatives open to it. The Tribunal considered that either Mr Jiang had deliberately set out to mislead the Authority and Tribunal or he had overlooked his directorship and did not consider the fact his mother owned the shares in the company enabled any particular access to its records. The record disclosed this exchange:
MR SIMMONDS:
So it’s going to be my submission to Your Honour that he is being frank with you, he is being honest, he is acknowledging now that, well in actual fact back in 2014 it looks as though I did sign that document, but that doesn’t make his reply to the tribunal deliberately misleading or evasive in my submission. It doesn’t necessarily follow that he, as an officer of the Court that he now is, as a barrister and solicitor of the High Court [of] New Zealand has set out to deliberately mislead this tribunal, and that would be a very, very serious conclusion for this tribunal to be reaching in my submission Sir on the evidence before it. It’s one possible inference but it’s not the only reasonably available inference in my submission before this Tribunal.
THE CHAIR:
Yes no I heard you no – plainly it isn’t the only one, I’m not saying that would be my conclusion either.
[67] However, while it may have been open to the Tribunal to reject Mr Jiang’s evidence the real issue remains whether in doing so it engaged in an impermissible reasoning process which ultimately led it to an unreasonable and unsupportable conclusion in making the adverse credibility findings in the way it did.
Did the Tribunal give insufficient or inadequate consideration to alternative explanations?
[68] Mr Witten-Sage submitted the Tribunal did not fail to give consideration to the alternatives available to it. As noted, the Tribunal considered there were only two possibilities, either:
(a) Mr Jiang believed the file existed. If disclosed it would exonerate him and he did all he could in the circumstances as he believed them to be, but he had no ability to produce either the file or material information as to what happened to it; or
(b) he was aware full disclosure of the file would not support his claims regarding the standards of service delivery and embarked on a dishonest attempt to pretend he could not access the entire file and constructed a false account that material parts of the file were missing.
[69] However, that really misstated Mr Jiang’s position. His position was that he had complied with the requirements of the Act. While he accepted the file provided to the Tribunal was incomplete, he could not explain why the requisite documents were not on the file. The file went back to 2011. Mr Jiang said he had had no direct control over the file since he left his position as an immigration consultant with the firm in July 2015.
[70] The issue that the Tribunal focussed on was that Mr Jiang remained a director even after he left the employment of the company. But that only emerged at the hearing and Mr Jiang proffered a reasonable explanation for it. It was that he had forgotten he was a director. It was a small privately held company. His principal role and involvement with the company on a day-to-day basis was as an employed immigration consultant. After he left, Mr Haskett took over his former responsibilities, as evidenced by Mr Haskett filing the company returns, and providing advice to the Authority that he had “got together all the information [I] could find regarding this client”. After July 2015, Mr Haskett had physical control of the relevant files, not Mr Jiang. Mr Jiang had a new career. In all practical respects, he had no
reason to have any dealings with the company even though he remained formally listed as a director.
[71] The Tribunal effectively leaped from the evidence that Mr Jiang was a director to the conclusion that Mr Jiang had deliberately set out to mislead the Authority and Tribunal about the content of the file, without properly considering Mr Jiang’s explanation. Put another way, the Tribunal rejected Mr Jiang’s explanation on an erroneous basis.
[72] The Tribunal also relied on the fact Mr Jiang’s mother owned all the shares in the company to find Mr Jiang had deliberately misled it. The Tribunal said (after the reference to the need for some “reality”) as quoted above at [37] that:
you’re saying that she is withholding documents that would extricate you. Now that does not sit well with me. I’ll be quite frank with you.
But that mischaracterised what Mr Jiang had said. He had said:
Just because she’s [his mother] a shareholder of the company doesn’t mean that she had a legal obligation to me her, Sea Consultants current or existing transactions, just as I will not tell her anything related to my work even though she’s my mother.
Mr Jiang had never said that his mother was withholding documents that would extricate him.
[73] The point is that Ms W’s file was the company’s file. Mr Jiang had left it with the company when his employment finished in July 2015. When requested, Mr Haskett located the file and provided it to the Tribunal. There was no reason for Mr Jiang to have anything further to do with the company after he left in July 2015. The Tribunal fell into error in relying on Mr Jiang’s relationship with his mother to reject Mr Jiang’s otherwise reasonable explanation that he had forgotten he was a director. This was effectively the only “independent evidence” the Tribunal relied on to reject Mr Jiang’s explanation.
[74] Further, the Tribunal’s reasoning to reject the proposition that, as Mr Jiang’s directorship and his mother’s shareholding were matters of public record, he would not have deliberately withheld that information is, with respect, conclusory. The
Tribunal rejected the proposition on the basis that “risking discovery can only be explained by folly”.
[75] Mr Witten-Sage submitted that, while the Tribunal had identified the above two possibilities, it had effectively considered the third alternative Mr Simmonds argued for, namely that Mr Jiang had simply forgotten about the matter, but the Tribunal had rejected it. Counsel referred to the following passages of the Tribunal’s decision. First he noted the reference to Mr Jiang’s explanation:
While he accepted that as the director, he had the power to control the company’s response to the Authority’s statutory requirement, he had entirely forgotten he was a director. Accordingly, his responses regarding his lack of capacity to do anything were genuine. He accepted he had personally signed consent to be a director on 25 July 2014, less than two years before his email to the Authority of 4 May 2016 stating “I do not believe I have any power now to submit any files for inspection”. However, he said he had no recall of signing the consent, but accepted he had done so.
And then the Tribunal’s dismissal of the explanation:
The first issue is that Mr Jiang says he forgot he was the sole director of the company. The claim is inherently implausible. There are cases where such confusion is understandable; for example, where a person holds directorships in a number of companies in a complex structure or a naïve person may not understand the significance of being a company director. In contrast, Mr Jiang is a lawyer, this is a small family company, he is the sole director; and he was a licensed immigration adviser. He could not qualify as a licensed immigration adviser without understanding the serious obligations the company had to clients, and the licensed immigration advisers it employed. He must have understood the significance of being a director of this company, when he signed the documentation to take on that role.
[76] But neither the reference to the obligation the company had to its clients nor that Mr Jiang had as an immigration adviser address the issue of whether Mr Jiang reasonably forgot he was a director.
[77] In my judgment the Tribunal fell into error in the course of its reasoning by limiting its considerations to the two propositions it identified and in the way it purported to reject Mr Jiang’s explanation. The alternative proposition, namely that the file was incomplete but Mr Jiang had innocently forgotten he was a director, was not properly considered by the Tribunal. The further alternative was more than a variation of the Tribunal’s first possibility. To the extent the Tribunal considered Mr
Jiang’s explanation it conflated the explanation with other irrelevant issues in rejecting it.
[78] The Tribunal also fell into error in the way it purported to make the adverse credibility findings. The Tribunal said it would apply the standard of beyond reasonable doubt to the onus of proof on the credibility issues. It later made conclusory statements to the effect that it was “left in no doubt” Mr Jiang had created a false impression. This was despite earlier acknowledging there were two reasonably available inferences open to it. If there were two reasonably available inferences open and the standard of proof was beyond reasonable doubt, Mr Jiang should have been given the benefit of the more favourable inference. It was unnecessary for the Tribunal to engage in this exercise. It could have found the complaints proven without making the adverse credibility findings.
[79] I accept the plaintiff’s argument that the Tribunal failed to give sufficient consideration to alternative explanations. In my view, this goes to the ultimate issue in this case, which I resolve under the next head of review raised.
Were the Tribunal’s credibility findings ultimately unreasonable?
[80] The ultimate issue in this case is whether the adverse credibility findings were an error of law so as to be unreasonable. As the Supreme Court said in Bryson, Mr Jiang faces a very high hurdle in making out this ground.17 But I am satisfied that threshold is met in the circumstances of this case for the following reasons.
[81] First, it was not necessary for the Tribunal to make the adverse credibility findings. Mr Jiang did not face a complaint of dishonesty under s 44(2) of the Act. It was open to the Tribunal to uphold the complaints by simply not accepting Mr Jiang’s recollection of events. There is an important distinction between not accepting Mr Jiang’s evidence and deciding that Mr Jiang deliberately deceived the Authority and Tribunal.
17 Bryson v Three Foot Six Ltd, above n 6, at [27].
[82] In my view, the fact that the adverse credibility findings were unnecessary assists Mr Jiang in satisfying the test for error or law or unreasonableness. The hurdle to satisfy the test is deliberately high because of the principle that it is not for a court in review to substitute itself for the decision maker in determining the merits of the case. Here, however, the Tribunal was not tasked with determining whether Mr Jiang acted dishonestly. Its decision to make intermediate findings on Mr Jiang’s credibility was more properly one of process.
[83] Secondly, and as I found above, the Tribunal failed to give sufficient consideration to Mr Jiang’s explanations regarding his position as a director and his mother’s shareholding.
[84] Thirdly, the certainty with which the Tribunal reached its finding is not supported on the evidence. As I have noted, during the hearing the Tribunal acknowledged that there were explanations other than deception for Mr Jiang’s statements to the Authority and Tribunal. It said that a conclusion that Mr Jiang had been evasive, misleading or deceptive was “not the only implication” and that “plainly it isn’t the only ... conclusion”.
[85] However, by the time of its decision, the Tribunal’s view had changed. It held that there was “overwhelming” evidence that Mr Jiang had deliberately misrepresented his ability to access the file, and that there was “no doubt” that Mr Jiang had crafted a false impression to hide the reality that he and his mother could control the company. In my view, no reasonable Tribunal would have made its findings with such certainty, given the paucity of evidence from which the Tribunal made its inference and also in light of Mr Jiang’s plausible explanations for his statements.
[86] Next, in making the findings the Tribunal had regard to earlier correspondence when it was only the formal response to the complaints which Mr Jiang confirmed on oath. Insofar as they related to the file, they are set out at [30]. If he had forgotten he was a director (which the Tribunal acknowledged was an option) then what he said in the response did not support the adverse credibility findings.
[87] Finally, my review of the hearing process supports the conclusion that once the Tribunal heard the evidence that Mr Jiang was a director and his mother owned all the shares in the company, the Tribunal considered Mr Jiang had set out to mislead the Authority and the Tribunal in his responses. The hearing proceeded on that basis, with the Tribunal’s focus on confirming that issue despite its remarks referred to at [84] above.
[88] The record discloses that the Tribunal was dramatically affected by the evidence of the company’s records. When the issue of Mr Jiang’s mother’s shareholding is put to one side, as it should be, and the alternative explanation is considered, namely that Mr Jiang forgot he was a director, then it was unreasonable to make the adverse credibility findings, particularly when it was unnecessary to do so.
Result
[89] The application for judicial review succeeds. Relief is, however discretionary. Given that Mr Simmonds accepts the complaints were established, there is no purpose to be served in referring the matter back to the Tribunal.
[90] On an application for judicial review the Court may make a declaration where appropriate.18 I make a declaration that the Tribunal should not have made the adverse credibility findings it did against Mr Jiang.
Costs
[91] The plaintiff is to have costs on a 2B basis together with disbursements.
Venning J
18 Judicial Review Procedure Act 2016, s 16(1)(b).
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/3152.html