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High Court of New Zealand Decisions |
Last Updated: 18 April 2018
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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-2017-404-001691
[2018] NZHC 577 |
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IN THE MATTER OF
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an application for leave to appeal under section 245 of the Immigration Act
2009
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BETWEEN
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KRUTI PATEL
Applicant
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AND
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MINISTER OF IMMIGRATION
Respondent
further proceeding continued over
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Hearing:
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15 November 2017
[Further submissions received 12 and 16 February 2018]
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Counsel:
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A Schaaf for the Applicant
I M G Clarke for the Respondents
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Judgment:
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29 March 2018
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JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 29 March 2018 at 11.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
PATEL v MINISTER OF IMMIGRATION [2018] NZHC 577 [29 March 2018]
CIV-2017-404-001691
UNDER Section 8 of the Judicial Review Procedure Act 2017
IN THE MATTER OF an application for leave to bring judicial
review proceedings under section 249 of the Immigration Act 2009
BETWEEN KRUTI PATEL
Applicant
AND IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION
Second Respondent
Introduction
[1] Ms Patel applies for leave to appeal and to review a decision of the Immigration and Protection Tribunal (Tribunal).1
[2] The Tribunal upheld the Minister of Immigration’s decision to issue a deportation notice to Ms Patel under s 158(1)(b)(ii) of the Immigration Act 2009 (Act). It rejected Ms Patel’s contentions that an alleged marriage to Mr Jingar in India was procured by fraud. It found that Ms Patel had concealed relevant information, namely her commencement of divorce proceedings against Mr Jingar in 2009. It also found that there were no exceptional circumstances of a humanitarian nature which warranted the grant of the appeal.
[3] The leave applications raise issues about the knowledge and intent required to establish concealment of information in circumstances where there has been some disclosure, and the relevance of that to an assessment of whether there are exceptional circumstances of a humanitarian nature. The applications also raise issues about the Tribunal’s approach to the evidence adduced in relation to the alleged marriage, and procedural unfairness arising out of an alleged counsel error.
Background
[4] Ms Patel is a citizen of India. She arrived in New Zealand in 2008 on a student permit and subsequently obtained a succession of permits and visas that allowed her to lawfully work and remain in New Zealand.
[5] In November 2008, Immigration New Zealand (INZ) was contacted by Mr Jingar, an Indian citizen residing in that country. He asserted that Ms Patel had married him in India in 2007. INZ did not take any steps to verify his allegations at this time.
[6] Ms Patel met Mr Vishal Patel in 2008, and commenced a relationship with him in 2009. Mr Patel was also an Indian citizen residing in New Zealand. They were
1 Patel v Minister of Immigration [2017] NZIPT 600365.
married on 3 June 2011. Shortly after their marriage, Mr Patel applied for permanent residence and included his new wife, Ms Patel, in his application.
[7] INZ interviewed Ms Patel in August 2011. In the course of the interview, Ms Patel was asked about Mr Jingar, and his allegations that they were married. She told the interviewer that the marriage was not genuine, and that a marriage document, which purported to prove the marriage, was forged. When asked whether she wanted to add or clarify anything, she said, “if you want to know more I can tell you”. The notes of the full interview record the questions and answers as follows:
Who is Hardick Harivadan Jingar? He applied for a SV in Jan 2008, around the same time you did. We have received information that you were not single when you first came to NZ as a student. You were married to Mr Jingar in India since 24 Sep 2007. We received information that you would try to get married again in NZ to get NZ residence. Please comment.
He was my friend. When I was applying to come here we were doing
IELTS together. Were in the same class. He was liking me but I told
him No, I do
not like him. I was planning to make a career and not interested in the
relationship. He was crazy about you. He saw
his girlfriend in him. His
girlfriend committed suicide because her father was against their relationship
and he did not want them
to get married. She was emotional and she killed
herself in Feb 2007 and then he went into that trauma. He wanted to leave India.
Then we met and he found out I was rich. I found out he was not a nice person,
that is why the girl’s father was against the
marriage. I was close to his
sisters but I told him I was not interested. He wanted to go to Australia but
then changed to NZ when
he found out I was going there and I had an aunty here
to provide accommodation. He did not have any financial support so it was
good
for him. He wanted us to get married but I said no. Then I got a visa and I was
happy. He was harassing me and my mum took my
phone. I stayed at home 2 months
and went out only with my family. He was telling everywhere to her friends and
families that they we got married and showed them the fake
document. He even showed it to my dad and he was upset and did not believe it.
He sent a
copy to all my friends through Facebook. All his docs to come to NZ
were fake. Until today he is blackmailing my family. I told Vishal
about it. He
still got married to me. My uncle and aunty here believed that it was a true
document and told me to move out. Now they my parents have no
relationship with them. Hardick said he would create problems for me and I would
be sent back from NZ as he wants
me back. He told my dad I was not attending the
school and working on KRoad. My dad did not speak to me a year. I took my papers
to him in 2009 and then he believed me. Hardick did the robbery and has a police
record.
Is it a genuine relationship on your behalf?
Yes. I will live with him the whole life.
Anything you want to ad [sic] or clarify?
If you want to know more I can tell you.
[8] Ms Patel was interviewed again in 2012. The primary purpose of the interview was to obtain information in order to establish whether the relationship between Mr and Mrs Patel was stable and genuine. She was asked again about Mr Jingar. The notes of that interview record as follows:
Who is Hardick Harivadan Jingar? We have received information that you were not single when you first came to NZ as a student. You were married to Mr Jingar in India since 24.0-9.2007. We also received information that you would try to get married again in NZ to get NZ residence. Please comment.
I am well aware of this information as I was interviewed last year for my work visa and these allegations were asked of me at the interview.
[9] INZ accepted Ms Patel’s account and made no further inquiries in either 2011 or 2012. Resident visas were granted to Mr and Mrs Patel in August 2012. Their daughter was born on 25 March 2014. She is currently being cared for by Ms Patel’s parents in India.
[10] Mr and Mrs Patel were granted permanent resident visas in September 2014. One month later, in October 2014, Mr and Mrs Patel separated.
[11] Mr Jingar contacted INZ again in June 2015. He provided INZ with a copy of a marriage certificate, and with photographs taken of Mr Jingar, Ms Patel and her daughter during Ms Patel’s visit to India in 2014. Mr Jingar repeated the same allegation about the marriage, but this time he added that Ms Patel had returned to India in 2009 and had commenced proceedings to divorce him at that time. He said that the Gujarat Court had dismissed the proceeding because Ms Patel was not present to prosecute it. As such, Mr Jingar alleged that his marriage to Ms Patel remained valid.
[12] After receiving this further communication, INZ instructed its office in New Delhi to investigate Mr Jingar’s claims. The investigations were carried out by Mr Tripathi, who instructed a company called Data Flow to carry out the investigations. Following receipt of the information from Data Flow, Mr Tripathi concluded that the marriage certificate between Ms Patel and Mr Jingar appeared valid, and that Ms Patel had lodged an application for divorce which had been dismissed by the Court.
[13] On 4 December 2015, INZ wrote to Ms Patel stating that it had commenced an investigation into whether she was liable for deportation. The letter stated that the reasons for believing Ms Patel may be liable for deportation included the fact that INZ was not advised of her marriage to Mr Jingar prior to being granted residence, and that had INZ been aware of the marriage, she may not have been eligible to be included in Mr Patel’s residence application.
[14] In correspondence with INZ, Ms Patel repeated her view that the marriage was not genuine and that Mr Jingar was trying to blackmail her and harass her. She also reiterated that she considered the marriage certificate sent by Mr Jingar to have been fraudulently obtained. In relation to the divorce proceedings, she explained that she had received legal advice in India to commence those proceedings.
[15] On 25 August 2016, the Minister issued a deportation liability notice. The grounds specified in the notice are as follows:
[16] Ms Patel subsequently appealed to the Tribunal on the facts and on humanitarian grounds. The legislative framework relevant to that appeal is set out below.
Legislative framework
[17] The deportation notice was issued under s 158(1)(b)(ii) of the Act. That section provides:
(1) A residence class visa holder is liable for deportation if—
...
(b) the Minister determines that—
...
(ii) any of the information provided in relation to the person's, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.
[18] Ms Patel appealed against her liability for deportation on the facts under s 201 of the Act. The grounds for determining an appeal on the facts are set out in s 202 of the Act. Subsection (ca) applies in this case and provides as follows:
202 Grounds for determining appeal on facts
The Tribunal must allow an appeal against liability for deportation on the facts where,—
...
(ca) in the case of an appellant liable for deportation under section 158(1)(b)(ii), the Tribunal is satisfied, on the balance of
probabilities, that none of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, and no relevant information was concealed:
[19] Ms Patel also appealed to the Tribunal on humanitarian grounds under s 206 of the Act. The grounds for determining a humanitarian appeal are set out in s 207(1) of the Act, which provides as follows:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[20] Section 207(1)(a) is comprised of three limbs, each of which must be established for the Tribunal to allow an appeal. Those limbs are:2
(a) exceptional circumstances;
(b) of a humanitarian nature;
(c) that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[21] The exceptionality threshold is a high one. The humanitarian circumstances must “be well outside the normal run of circumstances”.3
3 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
Decision of the Tribunal
[22] At the Tribunal hearing, Ms Patel gave evidence on her own behalf, and called evidence from Mr Woodcock, a registered clinical psychologist. The Minister arranged for evidence to be given by telephone-link by Mr Tripathi, the officer in the New Delhi branch of INZ who had carried out the investigations into the marriage.
[23] The Tribunal identified that at the heart of Ms Patel’s predicament was the fact that she claimed to be in a stable and genuine relationship with Mr Patel when she appeared to already be married to Mr Jingar.4 The Tribunal referred to the appellant’s contentions that the marriage certificate was false, but noted that the evidence tended to point the other way and referred to Mr Tripathi’s opinion that it was unlikely that the marriage certificate was fraudulently obtained.5
[24] The Tribunal also referred to the divorce proceedings which it found affirmed, rather than undermined, the validity of the marriage to Mr Jingar. The Tribunal rejected Ms Patel’s explanation for issuing divorce proceedings as implausible. It considered that it was “unlikely that a lawyer would suggest that a client risk being seen to endorse as genuine a document which the client asserts is false”. It also considered unlikely that a lawyer would recommend to a client that he or she commit perjury by asserting on oath a falsehood to a court. The Tribunal regarded it as significant that no evidence had been adduced from the lawyer to corroborate that claim, and that no evidence was called from any family members to support Ms Patel’s contention.6
[25] The Tribunal accepted that Ms Patel had told INZ about the marriage certificate in the 2011 and 2012 interviews,7 but it rejected any claim that she disclosed the fact of her divorce proceedings.8 The Tribunal observed that, from the point of view of the interviewing officers, the disclosure of divorce proceedings would have contradicted the appellant’s claim that her marriage to Mr Jingar was not valid, and that the marriage certificate was fraudulent. The Tribunal said it would make no sense for her
4 Patel v Minister of Immigration [2017] NZIPT 600365 at [57].
5 At [58]–[60].
6 At [61].
7 At [64].
8 At [65].
to seek to divorce a man to whom she claimed not to be married. In addition, the Tribunal noted that the fact that the appellant had applied for, but not obtained, a divorce in India rendered her marriage to Mr Patel bigamous.9
[26] The Tribunal reached the following conclusion on the appeal on the facts:
[69] The Tribunal finds on the balance of probabilities that the appellant did not disclose to Immigration New Zealand, in either 2011 or 2012, that she had commenced proceedings for divorce against Mr Jingar in 2009. This was information of direct relevance to the issue that Immigration New Zealand was required to address when determining whether to issue to her a work visa and a residence visa; namely, whether the appellant was in a genuine and stable relationship with Mr Patel. In failing to disclose this information, the appellant deprived Immigration New Zealand of a relevant line of inquiry.
[27] In relation to the appeal on humanitarian grounds, the Tribunal canvassed Ms Patel’s personal circumstances, the best interests of her daughter, Ms Patel’s mental health and her vulnerability to Mr Jingar.
[28] The Tribunal considered that returning to India would be emotionally difficult for Ms Patel, but her parents, brother, and daughter would provide significant emotional and practical support while she sought to re-establish herself.10 It did not consider there to be any evidence that established that Ms Patel would be unable to support herself in India.11 The Tribunal considered the best interests of Ms Patel’s daughter would continue to be met in the foreseeable future by remaining in India whether Ms Patel returned to India or remained in New Zealand.12
[29] In relation to Ms Patel’s depressive condition and anxiety disorder, the Tribunal noted that this may be connected to a sexual assault at the hands of Mr Jingar. However, the Tribunal did not consider Ms Patel to be at risk of further sexual assault by Mr Jingar, and, if anything, she was more likely to be the subject of emotional manipulation than physical assault.13 The Tribunal considered that Ms Patel would get sufficient support in India for her mental health, particularly as her brother is a medical professional. The Tribunal also referred to Mr Woodcock’s evidence that, in
9 At [67].
10 At [95].
11 At [96].
12 At [97].
13 At [100].
his view, the anticipation of a return to India would be worse for the appellant than the actual event of meeting Mr Jingar, were that to occur.14
[30] Taking all those circumstances into account, the Tribunal did not think they met the high threshold of exceptionality required by the Act.15 That finding made it unnecessary to go on and consider the other limbs of the s 207 test.16
[31] The appeal was accordingly declined.
Leave to appeal: legal principles
[32] Ms Patel applies for leave pursuant to s 245 of the Act. That section allows a party to appeal on a point of law with the leave of the High Court or the Court of Appeal.
[33] In determining whether to grant leave, the Court must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court.17
[34] The Court of Appeal has held that the test for leave in s 245 is similar to that which applied under s 67 of the Judicature Act 1908. That is, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.18
[35] In Machida v Chief Executive of Immigration of New Zealand, the Court of Appeal summarised the relevant test as requiring an applicant to identify a seriously arguable question of law which either:19
14 At [101].
15 At [102].
16 At [103].
17 Section 245(3).
(b) for some other reason warrants a decision from the High Court.
[36] In relation to the “any other reason” ground, the Court of Appeal said that it agreed with the series of decisions in the High Court which have held that it would only be “in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met”.20
[37] There has been judicial debate in the High Court about the scope of the “any other reason” ground.21 This debate has assumed particular significance in applications for leave to judicially review a Tribunal’s decision under s 249 of the Act. For present purposes, the Court of Appeal’s decision in Machida represents the last word on the scope of that ground in applications for leave to appeal.
[38] An applicant seeking leave to appeal to challenge a factual finding by the Tribunal faces a triple hurdle. That triple hurdle was described by Kós J in Taafi v Minister of Immigration as follows:22
- (a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
20 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
21 See, for example, R M v Immigration and Protection Tribunal [2016] NZHC 735 at [33]–[37]; Kumar v The Minister of Immigration [2016] NZHC 1593 at [37]- [41]; LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [33].
22 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
Thirdly, the applicant must show that the question of law ... is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. ... Thus [the applicant] relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court. ... In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
(footnotes omitted).
Leave to appeal: Ms Patel’s application
[39] Ms Patel seeks leave to appeal on five questions which are as follows:
(a) Did the Tribunal err in law by finding that the appellant concealed the fact of her application to divorce Mr Hardik Marivadan Jingar in the circumstances of this case where evidence was available that the registration of the marriage could have been procured by forgery?
(b) Did the Tribunal err when it did not consider the signatures on the Memorandum of Marriage and the Certificate of marriage from the Hindu Religious Priest submitted by the respondent as evidence of marriage between the applicant and Mr Jingar when those signatures may have been forged on the face of those documents?
(c) Did the Tribunal err in concluding that the applicant did marry Mr Jingar by taking into account unreliable third hand hearsay evidence and the opinion of Mr Amitabh Tripathi, Immigration Officer employed by the Immigration Service in India, about the validity of the applicant’s marriage?
(d) Did the Tribunal err in not seeking further evidence from the respondent, including forensic evidence about the validity of the Memorandum of Marriage and the certificate of marriage from the Hindu Religious Priest provided as proof of the marriage between the applicant and Mr Jingar?
(e) Was the Tribunal’s decision unreasonable in that it relied on unclear copies of the Memorandum of Marriage and the Certificate from the Hindu Religious Priest?
[40] Although these questions of law do not expressly relate to an appeal on humanitarian grounds, counsel for Ms Patel has confirmed that an appeal from the
findings of the Tribunal on that aspect is nevertheless pursued.23 She says that the findings in relation to the fraudulent marriage, and reliance on hearsay evidence, informed the Tribunal’s decision on humanitarian grounds and to that extent the Tribunal erred.
[41] The five questions posed by Ms Patel involve overlapping factors. I consider each of them under the following sub-headings:
(a) Is it seriously arguable that the Tribunal erred in law by concluding that relevant information had been concealed?
(b) Is it seriously arguable that the Tribunal erred in law by concluding that Ms Patel’s marriage to Mr Jingar was genuine?
[42] For completeness, I note that Ms Patel indicated that she intended to seek leave to adduce further evidence on appeal in the event that the appeal was granted. This issue is considered in the context of the application for leave to review the Tribunal’s decision on the grounds of counsel error in failing to adduce relevant evidence.
Leave to appeal: Is it seriously arguable that the Tribunal erred in law by concluding that relevant information had been concealed?
[43] Ms Patel’s first proposed appeal ground challenges the Tribunal’s finding that Ms Patel had concealed relevant information, namely the divorce proceeding.
[44] Counsel for Ms Patel submits that it is seriously arguable that the Tribunal’s findings are unreasonable because of the conclusions the Tribunal reached about the validity of the marriage to Mr Jingar. That challenge is an attack on the Tribunal’s factual findings and its approach to the evidence. Those factual and evidential challenges are addressed in the following section.
23 Counsel for the Minister contended that the application for leave was only in respect of the Tribunal’s conclusion on the appeal on the facts and accordingly did not address the humanitarian grounds in her written submissions. The application for leave to appeal is not expressly limited to the Tribunal’s decision on the appeal on the facts. One of the stated grounds is that the questions of law relate to “exceptional circumstances”. I have therefore approached the leave to appeal application as relating to the Tribunal’s decisions on both the appeal on the facts and the appeal on humanitarian grounds.
[45] The first proposed ground of appeal also raises issues about the legal test which applies in an appeal on the facts under s 202(ca) of the Act. In particular, it raises questions about the meaning of “relevant information” and “concealed” in that section and in s 158(1)(b)(ii) of the Act.
[46] I start with the meaning of “relevant”. Section 58(3) of the Act obliges applicants to inform INZ of any relevant fact if that fact may affect the decision on the application or a decision to grant entry permission in reliance on the visa for which the application is made.
[47] The fact of the divorce proceedings was relevant to the validity of Ms Patel’s marriage to Mr Jingar. That marriage was relevant to whether the relationship between Mr and Mrs Patel was genuine and stable. Whether the marriage was obtained by fraud or not, the divorce proceedings was a fact which may have affected the decision on the residence application. Accordingly, it is not seriously arguable that the Tribunal erred in determining the divorce proceedings to be relevant information.
[48] The next question concerns the meaning of “concealed” in s 158(1)(b)(ii) and s 202(ca) of the Act. Ms Patel contended before the Tribunal that she had disclosed the fact of the divorce proceedings. That was rejected by the Tribunal and that finding is not challenged in this Court. For the purposes of this leave application therefore, it is not in dispute that Ms Patel did not disclose the divorce proceeding.
[49] Neither counsel referred me to any cases where the meaning of “concealed” in ss 158 (1)(b)(ii) and 202(ca) had been specifically considered. In Pal v Minister of Immigration, Asher J reviewed a line of authority concerning the mens rea element required under s 158(1)(b) and its equivalents in other legislation.24 On the basis of that line of authority, Asher J concluded that a subjective element was not required in order to satisfy the matters set out in s 158(1)(b). However, that case, and those that the Judge reviewed, were concerned with fraudulent or forged information, or omissions that rendered the information provided misleading. There was no specific
24 Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240 at [45]–[52]; Rajan v Minister of Immigration HC Auckland M1151/94, 31 July 1995 at 11; Zheng v Attorney-General HC Wellington AP39/90, 14 May 1993 at 8; Ansell v Minister of Immigration [2001] NZAR 999 (HC) at [42].
consideration of the meaning of “concealed” in either s 158(1)(b) or s 202(ca) in any of those cases.
[50] The courts have traditionally taken a robust approach to non-disclosure of relevant information. In Sidhu v Chief Executive of the Ministry of Business, Innovation and Employment, Moore J concluded that a failure by the plaintiff to disclose her intention to meet, marry and cohabit with a man whom it was arranged she would marry, and who was unlawfully in New Zealand, was a departure from the duty of candour expected of applicants for visas. Moore J held that the fact of her intention to marry the man in question would have been relevant to an immigration officer’s assessment of an application for a visa.25
[51] Similarly, in Joseph v Minister of Internal Affairs, Lang J held that the applicant’s failure to disclose convictions in another country because he thought they were not relevant as they had been expunged, constituted “wilful” concealment of relevant information for the purpose of s 17(2) of the Citizenship Act 1977. The plaintiff’s suggestion that he thought the information was irrelevant was unconvincing because the application form which he was required to fill in required him to disclose any court convictions, legal actions or investigations, whether in New Zealand or overseas.26
[52] The 2015 amendments to s 158 placed even further emphasis on full and accurate disclosure regardless of fault or intention. Those amendments broadened the grounds on which a residence class visa holder can be held liable for deportation. In particular, s 158(1)(b), which previously triggered deportation liability where a person’s residence class visa or entry permission was “procured” through the concealment of relevant information, was altered so as to trigger liability simply where any relevant information was concealed.
[53] In reliance on these authorities and legislative amendments, counsel for the Minister submits that if an applicant ought reasonably to have contemplated that
26 Joseph v Minister of Internal Affairs [2012] NZHC 49, [2012] NZAR 179 at [53]–[54].
information may be relevant to their application and nonetheless decides not to disclose it, he or she will have “concealed” relevant information for the purpose of s 158(1)(b)(ii). On that basis, counsel submits that it is not seriously arguable that the Tribunal erred in concluding that the information had been “concealed”.
[54] There is considerable merit in the Minister’s formulation of the test. Nevertheless, I consider it seriously arguable that the Tribunal erred. The Tribunal did not expressly consider the required knowledge or intent for information to have been “concealed”. It did not specifically consider this issue in light of the disclosure made by Ms Patel of the primary relevant fact (namely the marriage), and her firmly held view that the marriage to Mr Jingar was obtained by fraud. The Tribunal appeared to simply equate non-disclosure with concealment. In that respect, I consider it is seriously arguable that the Tribunal erred.
[55] Furthermore, it is seriously arguable that any error in this respect tainted the Tribunal’s assessment of exceptionality for the purposes of the appeal on humanitarian grounds. The Tribunal found that the broader context in which the information was “concealed” was relevant to the humanitarian appeal.27 However, the Tribunal did not expressly consider the circumstances in which Ms Patel “concealed” relevant information, and did not therefore turn its mind to whether Ms Patel had acted deceitfully, deliberately or innocently in failing to disclose the divorce proceeding.
[56] These were factors which the Tribunal, and Court, had specific regard to in assessing the humanitarian grounds of appeal in Pal v Minister of Immigration.28 I consider that it is seriously arguable that Ms Patel’s knowledge and intent are factors relevant to the assessment of the exceptional circumstances of a humanitarian nature, and that the failure to take them into account is an error of law.
[57] In summary, I consider it is seriously arguable that the Tribunal erred by failing to consider Ms Patel’s knowledge and intent in not disclosing the divorce proceedings in circumstances where she had made disclosure of a key relevant fact (namely the marriage). That alleged error is relevant to the assessment of whether information has
27 Patel v Minister of Immigration [2017] NZIPT 600365 at [71].
28 Pal v Minister of Immigration [2013] NZHC 2070 at [21]–[33].
been concealed for the purposes of an appeal on the facts under s 202(ca) and whether there are exceptional circumstances of a humanitarian nature for the purposes of an appeal under s 207. These are questions of law which go beyond the facts of this case and have general or public importance. I intend to grant leave to appeal accordingly. The questions on which I intend to grant leave are set out at the end of this judgment.
Leave to appeal: Did the Tribunal err by concluding that Ms Patel’s marriage to Mr Jingar was genuine?
[58] Each of Ms Patel’s proposed grounds of appeal challenge, in one way or another, the Tribunal’s findings regarding the validity of her marriage to Mr Jingar.
[59] Counsel for the Minister submits that none of the proposed grounds of appeal are seriously arguable because findings about the validity of the marriage to Mr Jingar were not material to the Tribunal’s decision. On the Minister’s case, even if the Tribunal erred in its conclusions about the marriage (which is denied), such an error did not affect the Tribunal’s decision.
[60] It is difficult to ascertain precisely how the question of the validity of the marriage impacted on the Tribunal’s decision. However, I consider it to be seriously arguable that it at least coloured its decision on whether information had been “concealed” for the purposes of the appeal on the facts.
[61] In addition, a conclusion that the marriage was genuine and not obtained by fraud is likely to have informed the Tribunal’s assessment of whether there were exceptional circumstances of a humanitarian nature. A finding that the marriage had been obtained by fraud, or that there was merit in Ms Patel’s contentions, may well have led to a different assessment of those circumstances.
[62] Therefore, to the extent that there might have been an error in the Tribunal’s conclusions regarding the validity of the marriage, it is seriously arguable that such an error was material to the Tribunal’s determination under both heads of appeal. I have proceeded to consider Ms Patel’s challenges to the Tribunal’s factual findings on that basis.
[63] Ms Patel alleges that the Tribunal erred by taking into account Mr Tripathi’s evidence, which she characterises as “unreliable third hand hearsay evidence”. She says the reliance on this evidence was contrary to the principles and purposes of the Evidence Act 2006.
[64] Clause 8 of sch 2 to the Act provides that the Tribunal may receive as evidence “any statement, document, information, or matter that in its opinion may assist to deal effectively with the subject of the proceedings before it, whether or not it would be admissible in a court of law”. To the extent that there is any inconsistency between this provision and the Evidence Act, then the provisions of the Immigration Act prevail, unless the Evidence Act provides otherwise.29 The Tribunal’s wide powers to receive any information unconstrained by the rules of evidence have been confirmed in decisions of this Court.30
[65] In any event, I do not consider the Tribunal’s consideration of this evidence was a departure from the principle of fairness reflected in s 6(c) of the Evidence Act. The Tribunal expressly acknowledged that Mr Tripathi’s evidence was hearsay,31 and accordingly relied on other evidence which it considered supported the validity of the marriage. If Ms Patel disputed this evidence, then it was incumbent on her to produce the necessary evidence to do so. In light of the wide powers under cl 8, and the Tribunal’s acknowledgement of the character of the evidence, I do not consider it seriously arguable that the Tribunal erred by taking Mr Tripathi’s evidence into account.
[66] Next, Ms Patel says the Tribunal erred by not seeking further evidence, including forensic evidence, about the validity of the marriage and marriage documents. She acknowledges that s 229 of the Act does not oblige the Tribunal to make enquiries,32 but she relies on the decision of Palmer J in Wu v Minister of
29 Evidence Act 2006, s 5(1).
30 See AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [8];
Wu v Minister of Immigration [2016] NZHC 3194 at [63].
31 At [61].
32 Section 229(1) enables the Tribunal to require the chief executive to seek and provide information relevant to an appeal or matter. However, s 229(3) confirms that no party to the appeal or matter may request the Tribunal to exercise its powers under that section.
Immigration, which, she submits, leaves open the possibility that there will be a duty to enquire further in some cases and in respect of some types of information.33
[67] At issue in Wu was the Tribunal’s decision on a humanitarian appeal about the interests of a child (who was a New Zealand citizen) if she and her family were deported to China. Palmer J found that the direction in art 3(1) of the United Nations Convention on the Rights of the Child to consider the best interests of the child as a primary consideration in actions by public and administrative bodies concerning children, heightened the Tribunal’s concern to make the right decision in the exercise of its discretion. In at least those limited circumstances, Palmer J found that the Tribunal had a legal duty to consider the “foreign law and legislative facts upon which it has previously relied in its decisions, as to the implications of deportation on a New Zealand citizen child’s rights and interests”.34
[68] The decision in Wu has been appealed to the Court of Appeal but the appeal has not yet been heard. Assuming (without deciding) that a duty to seek further information does arise in some cases, I do not consider it is seriously arguable that it does so in this case. The further information which Ms Patel says the Tribunal should have sought does not concern the best interests of a child. Nor does it concern questions of foreign law or legislative facts. The further information is limited to the factual context of Ms Patel’s case, and is not information which might be said to inform the Tribunal’s application of law and policy. In this case, the Tribunal exercised its discretion to instruct agents to make enquiries regarding the marriage and the divorce proceedings. Ms Patel seeks to push the Tribunal further to effectively undertake an investigation into matters of fact relevant to the genuineness of the marriage and marriage documents.
[69] I consider that a duty to enquire further in these circumstances would be inconsistent with s 226 of the Act. That section makes it the responsibility of an affected person to establish his or her claim and to ensure that all information, evidence and submissions are provided to the Tribunal before it makes its decision on the appeal. It would also render s 228(2) of the Act, which provides that the Tribunal is not obliged
33 Wu v Minister of Immigration [2016] NZHC 3194 at [65].
34 Wu v Minister of Immigration [2016] NZHC 3194 at [66].
to seek any information or evidence although it may do so, essentially redundant. I am satisfied that it is not seriously arguable that the Tribunal erred in this respect.
[70] Ms Patel also submits that the Tribunal erred in considering the marriage documents, that is the memorandum of marriage and the certificate from the Hindu Religious Priest. She submits that the Tribunal did not consider the signatures on these documents when it is clear from the face of the documents that they may have been forged.35 Further, she says the Tribunal’s decision was unreasonable in that it relied on unclear copies of these documents.36
[71] It is not apparent that the Tribunal’s attention was specifically drawn to the different signatures on the face of the marriage documents, or that better copies of the documents were provided at the hearing. But even if its attention was so drawn, the Tribunal expressed a preference for the evidence of Mr Tripathi as to the genuine nature of the marriage documents. If Ms Patel wished to challenge that conclusion, or to establish that the signatures were forged, then she had to adduce the necessary evidence to support her claim. In the absence of such evidence, the Tribunal’s conclusions regarding the marriage documents cannot be regarded as unreasonable. This proposed ground of appeal is not seriously arguable.
[72] Finally, although it was not the subject of a proposed ground of appeal, counsel for Ms Patel submitted that the Tribunal’s conclusions that a lawyer is unlikely to have advised someone to commence divorce proceedings, was unreasonable. I agree that conclusions drawn from assumptions about the advice that a New Zealand lawyer would likely give may be of little assistance. However, Ms Patel has not produced any evidence to suggest that the conclusion drawn by the Tribunal was wrong, or that a lawyer in India may well have given the advice that Ms Patel says she received. In the absence of such evidence, I am not satisfied that the Tribunal’s assumptions were in error, or that any error it made was material to its decision.
[73] In summary, I am not persuaded that it is seriously arguable that the Tribunal erred in its assessment of the evidence or that any error that it made was so material
35 Appeal ground (b).
36 Appeal ground (e).
as to amount to an error of law. The application for leave to appeal on these grounds is declined.
Leave to review: legal principles and application
[74] Ms Patel also seeks leave to review the Tribunal’s decision. That application is governed by s 249 of the Act. In determining whether to grant leave, the Court must have regard to:37
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether there are seriously arguable issues38 which by reason of their general or public importance or for any other reason, ought to be submitted to the High Court for review.
[75] As already noted, there is a debate in this Court about the scope of the “any other reason” ground for leave to review. In Kumar v Minister of Immigration, the Court of Appeal referred to this debate but declined to consider it in the context of that case.39 For the purposes of this application, I take into account that this ground for leave to review may not be as restrictive as the equivalent ground for leave to appeal.
[76] Ms Patel’s application for leave to review the Tribunal’s decision proceeds on the following grounds:
(a) That the Tribunal erred in that it formed a closed mind to the claim by the applicant that she did not marry Mr Hardik Narivadan Jingar and that the Indian Memorandum of Marriage and Certificate of marriage from the Hindu priest showing that she married Mr Jingar were acquired by forgery;
(b) That there was unfairness to the applicant in that her legal representative before the Tribunal did not present, or seek the
37 Section 249(6).
38 Panchal v Minister of Immigration [2017] NZHC 2080 at [20]; Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36]; Kumar v Minister of Immigration [2016] NZHC 1593 at [35].
39 Kumar v Minister of Immigration [2016] NZCA 492 at [7].
following information, resulting in crucial evidence not being provided to the Tribunal:
(i) Emails between Mr Hardik Narivadan Jingar and the staff of the Ministry of Business Innovation and Employment, alleging that he was the father of the applicant’s daughter when the applicant was not in India, nor close to India, when her daughter was conceived;
(ii) Forensic analysis of the signatures in the Memorandum of Marriage and the Certificate from the Hindu priest who officiated the marriage; and
(iii) Evidence from the lawyer that the applicant sought advice from in India, or evidence from another lawyer in India, about the plausibility of the statement made by the applicant that she was advised to file for divorce from Mr Jingar rather than have the marriage to Mr Jingar declared null and void.
[77] Both questions are considered below.
Leave to review: Is it seriously arguable that the Tribunal erred by forming a “closed mind” as to the genuineness of the marriage to Mr Jingar?
[78] Ms Patel submits that the Tribunal failed to properly examine the marriage documents because it accepted that the marriage was genuine without critically examining Ms Patel’s claim that it was not.
[79] It cannot be seriously argued that the Tribunal approached the decision with a closed mind. The Tribunal weighed all the evidence put before it which was relevant to the validity of the marriage. In any respect, this question does not raise any issue of general or public importance, nor any issue that ought to be submitted to this Court for review. The application for judicial review on this question is declined.
Leave to review: Is it seriously arguable that there was counsel error causing unfairness to Ms Patel?
[80] Counsel for Ms Patel submits that her legal representative at the Tribunal hearing did not put forward crucial evidence relating to the validity of the marriage. She submits that this evidence was important to her case and would have had a bearing on the decision reached by the Tribunal. The evidence which she says should have
been put before the Tribunal is listed in the proposed ground for review (quoted at [76]).40
[81] This Court has acknowledged that it is possible for counsel error in failing to call important evidence causing procedural unfairness to be a ground for review. However, such cases are regarded as exceptional and they have generally involved cases of claimed refugee status.41 Accordingly, whether counsel error causing procedural unfairness is a ground of review in deportation cases involves a question of law of general or public importance which extends beyond the particular circumstances of Ms Patel’s case.
[82] In those cases where counsel error as a ground of review has been considered, the cogency and materiality of the evidence which was not adduced has been a critical factor in deciding whether to grant review. Counsel for the Minister submits that the evidence to be adduced in this case is neither material nor cogent to the Tribunal’s decision. That is because the relevance of this evidence is to the validity of the marriage, whereas the Tribunal’s decision was based on Ms Patel’s failure to disclose the divorce proceeding. Counsel also points out that there is an extremely high threshold for adducing new evidence on appeal, and it is unlikely that such evidence will be admitted.42
[83] The materiality of the evidence which Ms Patel says should have been adduced will depend in part on the scope of the relevant test for determining that information has been “concealed”, and its relevance to the assessment of exceptional circumstances for the purposes of the appeal. I have already decided to grant leave on those questions. Therefore, and bearing in mind the high threshold for admission of new evidence on appeal, I consider it appropriate for the Judge hearing and
40 The evidence referred to in (a) and (b) was produced (albeit in unsworn form) at the leave hearing. A statement from Ms Patel’s mother as to the advice received from the lawyer was also produced. However, there was no evidence from the lawyer who allegedly gave the advice, nor from any other lawyer in India.
41 See Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994; Isak v Refugee Status Appeals Authority [2010] NZHC 1111; [2010] NZAR 535 (HC).
42 See AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [51]– [57]; D v Immigration and Protection Tribunal [2014] NZHC 3017 at [24]–[33].
determining the appeal on those questions to decide whether the fresh evidence should be admitted.
[84] As previously noted, I consider it seriously arguable that the Tribunal’s conclusions regarding the validity of the marriage coloured its decision regarding the “concealment” of relevant information, and (at least implicitly) informed its decision on whether there were exceptional circumstances of a humanitarian nature. On this basis, the fresh evidence may well have had a significant impact on the Tribunal’s decision, and it is appropriate to grant leave on this question.
[85] Finally, counsel has not produced any evidence from which it could be inferred that the failure to adduce this evidence was a result of counsel error. However, counsel for the Minister did not oppose the application on this ground. Accordingly, for the purposes of determining the leave application I have accepted counsel for Ms Patel’s submission that the omission was a result of counsel error. However, evidence relevant to that alleged error will need to be produced at the review hearing if Ms Patel is going to establish that such an error resulted in procedural unfairness.
Result
[86] I grant leave to appeal on the following questions:
(a) Did the Tribunal err by concluding Ms Patel had “concealed” relevant information within the meaning of s 202(ca) of the Immigration Act 2009?
(b) Did the Tribunal err by failing to take into account whether Ms Patel intentionally concealed relevant information when assessing whether there were exceptional circumstances of a humanitarian nature under s 207 of the Immigration Act 2009?
[87] I grant leave to review the Tribunal’s decision on the following question:
(a) Did Ms Patel’s previous counsel err by failing to adduce evidence relevant to the validity of the marriage for the purposes of the Tribunal hearing? If so, did such error cause procedural unfairness?
[88] The remaining parts of the applications for leave to appeal and leave to review are dismissed.
[89] I direct the applicant to file and serve an application to adduce fresh evidence on appeal and any affidavit evidence in support by 2 May 2018. Any notice of opposition is to be filed by 16 May 2018. The application to adduce fresh evidence shall be determined by the Judge hearing the appeal and review applications.
[90] If costs cannot be agreed then a memorandum in support may be filed within 15 working days of this decision, with a memorandum in reply to be filed 10 working days thereafter.
Edwards J
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