Kaur v Minister of Immigration
[2016] NZHC 3110
•16 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-001430 [2016] NZHC 3110
IN THE MATTER of an application for leave to appeal under
s 245 of the Immigration Act 2009
BETWEEN
KULJINDER KAUR First Applicant
PIARA SINGH Second Applicant
HARBANS KAUR Third Applicant
AND
MINISTER OF IMMIGRATION Respondent
Hearing: 1 November 2016 Appearances:
A Schaaf for Applicants
M F Clark for RespondentJudgment:
16 December 2016
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 16 December 2016 at 3.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………
KAUR & ORS v MINISTER OF IMMIGRATION [2016] NZHC 3110 [16 December 2016]
Introduction
[1] Kuljinder Kaur and her parents, Piara Singh and Harbans Kaur (the applicants) are all Indian citizens. They were granted permanent residency in New Zealand in 2011. Another daughter, Kuldeep Kaur, who is married to a New Zealand citizen, sponsored their applications. When they applied for permanent residency the applicants failed to declare that Mr Singh and Mrs Kaur had four other adult children
still living in India. As a result, they became liable for deportation.1 The
Immigration and Protection Tribunal dismissed their appeals against liability for deportation.2
[2] The applicants wish to appeal the Tribunal’s decision. They need leave to do so and can only appeal on a point of law.3 In determining an application for leave to appeal this 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 for its decision.4
[3] Considering the threshold for leave under s 245, the Court of Appeal said in
Machida v Chief Executive of Immigration New Zealand:5
In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a) has importance extending beyond the particular case (which is what
“general or public importance” entails); or
(b) for some other reason, warrants a decision from the High Court. Although category (b) is open-ended, we agree with a 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.6
1 Immigration Act 2009, s 158(1)(b)(ii).
2 Singh & Kaur v Minister of Immigration [2016] NZIPT 600277-279.
3 Immigration Act 2009, s 245(1).
4 Section 245(3).
5 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at [8].
6 Citing Taafi v Minister of Immigration [2013] NZAR 1037 at [19](c); Nabou v Minister of
Immigration [2012] NZHC 13365, [2013] NZAR 155 at [8]–[9]; Cao v Immigration & Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration & Protection Tribunal [2014] NZHC 804 at [54]–[55]; SK v Immigration & Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration & Protection Tribunal [2015] NZHC 510 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32] Chan v Minister of Immigration [2015] NZHC 2036 at [26].
Background
[4] Mr Singh and Mrs Kaur were married in 1971 and had six children, three daughters and three sons. Mr Singh supported his family as a subsistence farmer. They had a very poor lifestyle with overcrowded living conditions and limited educational opportunities.
[5] In 2001 Kuldeep Kaur became engaged to a New Zealand resident. She was interviewed by Immigration New Zealand in India at that time and told them that her immediate family comprised her parents and a younger sister. She subsequently came to New Zealand on a visitor’s visa and married. In 2002 Kuldeep Kaur applied for residence on Family (Partnership) ground. In her application form she was asked for details of all of her family, whether migrating or not, and again declared that she had only one sibling. She made the same declaration in her medical and x-ray certificate. In 2002 Kuldeep Kaur was granted a residence permit.
[6] In 2004 the applicants applied for visitors’ visas. Mr Singh and Mrs Kaur were granted visas. Kuljinder Kaur was refused a visa. Mr Singh and Mrs Kaur stayed in New Zealand for about eight months. The following year they applied for further visitors’ visas and came to New Zealand in October 2006. Early the following year they applied for residence under the Family (Parent) Policy on the basis of Mr Singh being the principal applicant, Mrs Kaur being the secondary applicant and Kuljinder Kaur being included in the application as a dependent child. The application form asked for details of “ALL your family, whether emigrating with you or not”. The form contained a warning that if residence was granted and it was later found that family members were not declared the residence might be revoked. Mr Singh declared only the existence of his parents, brothers and sister and two children (Kuldeep and Kuljinder Kaur). The same statements were made in subsequent forms completed by Mr Singh and in a medical certificate provided by Kuljinder Singh.
[7] It is a requirement of the Family (Parent) category that the applicant’s centre of gravity of his or her family is in New Zealand. That is determined on the basis of the number and location of the principal applicant’s adult and dependent children.
On the basis of the information provided Immigration New Zealand assessed the
applicant’s family’s centre of gravity as being New Zealand.
[8] In 2008 Mr Singh and Mrs Kaur were granted residence permits and a month later Kuljinder Kaur was granted a residence permit. In 2010 Kuljinder Kaur became engaged to a man in India. He applied for a visitor’s visa and she supported that application but it was declined. In November 2011, just after being granted a permanent residence visa, Kuljinder Kaur returned to India to marry her fiancé. She returned in March 2012 but then went back to India in July 2012.
[9] In August 2012 Kuljinder Kaur’s husband applied again for a visitor visa, this time under the Family (Partnership) category. He was interviewed by Immigration New Zealand in India and asked “Who all are there in your wife’s family?” He replied “Parents and one more sister”. Immigration New Zealand also interviewed Kuljinder Kaur and asked the same question and received the same answer. But shortly after that Immigration New Zealand officers conducted a site visit to Kuljinder Kaur’s home village and there learned that there were four other adult children in the family.
[10] In September 2012 Kuljinder Kaur returned to New Zealand to have her first child. Her husband’s application for a visitor’s visa had been refused and the following year she returned to India, staying for about ten months. She came back to New Zealand in August 2014 for the birth of her second child and has remained here with her children ever since.
[11] In October 2015 the Minister of Immigration signed deportation liability notices for the three applicants.7 The applicants appealed to the Immigration and Protection Tribunal against liability for deportation on the basis of exceptional
circumstances of a humanitarian nature under s 207 Immigration Act 2009.
7 Immigration Act 2009, s 158.
The Tribunal’s decision
[12] Before the Tribunal the applicants sought to demonstrate that they were honest and hard-working, that the omission of information from the documents was not their fault and that if they were forced to return to India they would face extreme hardship because their family had insufficient accommodation and they and Kuljinder Kaur’s young daughters would suffer a lifetime of poverty and limited opportunities.
[13] Mr Singh and Mrs Kaur explained that they had limited education and did not read well even in their native Punjabi, and did not speak English at all. They had relied on a member of their temple community to complete the necessary forms for them and did not know anything about the incorrect information having been given. When he received a letter later from Immigration New Zealand asking for details of his family members he took the letter to his neighbours and then provided the information requested. He had no intention of misleading Immigration New Zealand and did not know that if he declared the existence of his other children the application would be declined. Mrs Kaur’s evidence was similar to that of her husband.
[14] When Kuljinder Kaur gave evidence she also said that her spoken English was very poor and that she could not read English, that she did not complete the application forms for the residence application and in her medical form thought she was being asked only about her family in New Zealand. Kuljinder Kaur said that when she went to India in 2013 to be with her husband her daughter was sick a good deal and could not cope with the heat. Moreover, if she were forced to return to India she would be expected to live with her husband’s family, which would be difficult because she does not have a good relationship with her mother-in-law; her husband and his family had expected that his marriage to Kuljinder would have enabled him to move to New Zealand and get employment here. It is even possible that her husband’s family would not agree to her living with them.
[15] The grounds for the appeal before the Tribunal were that exceptional circumstances of a humanitarian nature existed because of Mr Singh and Mrs Kaur
having lived here for ten years and Kuljinder Kaur having lived here for most of the time since 2008, because they are well settled in New Zealand and integral to their community, because they have a family nexus in New Zealand through their New Zealand resident daughter and her children and because, if forced to return to India, they will face a poverty stricken existence.
[16] It was said that it would be unjust or unduly harsh for them to be deported because they are illiterate and were not responsible for the information recorded in their residence application forms, that if forced to return to India they would face a life of poverty and Kuljinder Kaur’s daughters, who are New Zealand citizens, would also face a cycle of poverty without the benefits that New Zealand citizens enjoy.
[17] The Tribunal identified the statutory grounds for determining humanitarian appeals,8 noting that the three factors that had to be established were (1) exceptional circumstances (2) of a humanitarian nature (3) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The Tribunal also identified as relevant the entitlement of the family to protection as the fundamental group unit of society.9
[18] In considering whether there were exceptional circumstances the Tribunal reminded itself of the statement by the Supreme Court in Ye v Minister of Immigration that the circumstances “must be well outside the normal run of circumstances” and, whilst they do not need to be unique or rare, they do have to be
“truly an exception rather than the rule”.10
[19] The Tribunal acknowledged the applicants’ close connection to New Zealand and that they were well settled members of their community. It noted the fact that Kuljinder Kaur’s two children (then three-and-a-half and 21 months) were New
Zealand citizens. It recorded that under article 3.1 of the UN Convention on the
8 Immigration Act 2009, s 207.
9 International Covenant on Civil and Political Rights 1966 article 17 and 23(1) and citing the United Nations’ Human Rights Committee’s General Comment 16 (8 April 1988) and discussions in Toonen v Australia (Communication No. 488/1992, UN doc CCPR/C50/D/488/1992, 4 April 1994) and Madafferi v Australia (Communication No.
1011/2001, UN doc CCPR/C/81/D/1011/2001, 26 August 2004).
10 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
Rights of the Child the best interests of those children needed to be a primary consideration. The Tribunal noted, however, that all the applicants also had a very strong nexus to India. Mr Singh and Mrs Kaur had four children as well as siblings and grandchildren resident there. Kuljinder Kaur had spent some 17 months in India with her husband between 2011 and 2014 and for 11 of those months she had her eldest child with her as well. The Tribunal also considered the fact that residing in New Zealand separated Kuljinder Kaur’s children from their father. It concluded that, on balance, the children’s best interests lay with them living with both parents and, overall, were satisfied that there were not exceptional humanitarian circumstances.
[20] For the sake of completeness the Tribunal nevertheless went on to consider whether deportation would be unjust or unduly harsh but noted that the applicants’ liability for deportation arose because relevant information regarding their family had been concealed. It did not accept the applicants’ claim that the omission was accidental as a result of language difficulties given the many times the information had been concealed over a period of more than ten years. It weighed this fact against the consequences of deportation, referring in particular to the distress of the upheaval and the hardship for the applicants in having to adjust to a lower standard of living. It did not, however, consider that this met the high threshold for exceptional humanitarian circumstances. Nor did it consider the reports of the eldest daughter of Kuljinder Kaur having medical problems while in India to be sufficiently substantiated as being ongoing. It did acknowledge that the children would enjoy less opportunity by way of healthcare and education in India but considered that this fact had to be balanced against the benefit of the children being with both their father and their extended fraternal and paternal families.
Proposed appeal
[21] The grounds on which the applicants wish to appeal are that the Tribunal erred in law in:
(a) failing to consider significant factors or unduly limiting what can be considered as “exceptional circumstances of a humanitarian nature”, in particular:
(i) the health of Kuljinder Kaur’s eldest daughter, Gurleen;
(ii)the likely effect of Kuljinder Kaur’s failure to gain residence on her treatment by her husband’s family if she returns to India; and
(b)concluding that the best interests of Kuljinder Kaur’s two daughters lay with them living with both parents in India;
(c) stating that it did not matter whether the concealment of information or provision of misleading information was intentional or not when considering whether it would be unjust or unduly harsh to deport the applicants.
[22] The Minister maintains that the Tribunal correctly applied the test under s 207 and considered all the relevant factors. He says that the grounds of appeal are not seriously arguable and, in any event, do not raise any broad question of public importance that would justify granting leave.
An error of law in not considering significant factors or in unduly limiting what could be considered exceptional circumstances in relation to Kuljinder Kaur?
[23] This proposed ground of appeal is based on the health issues relating to Kuljinder Kaur’s older daughter, Gurleen, and on Kuljinder Kaur’s fear of how she may be treated by her husband’s family if she returns to India.
[24] As to the first, the argument advanced was that the Tribunal either did not consider Gurleen’s health or that it should have pursued the issue itself to obtain further information. Gurleen was born in New Zealand in November 2012 and returned to India with her mother in July 2013. She stayed there for nearly a year, coming back to New Zealand in June 2014. Kuljinder Kaur gave evidence before
the Tribunal that while they were in India Gurleen suffered from “typhoid and then she had diarrhoea and all sorts of sicknesses, she was very unwell”. Kuljinder Kaur said that Gurleen’s illness was “the main reason [she didn’t] want to go back”.
[25] The Tribunal did not accept that, given these circumstances, deportation would be unjust or unduly harsh. This conclusion was a purely factual one:
… The elder daughter apparently experienced health problems when she was in India at a younger age. There is no evidence that the daughter’s health problem is ongoing or that a return to India would jeopardise her health to an undue degree.
[26] An applicant seeking leave to challenge a factual finding faces significant hurdles. In Taafi v Minister of Immigration, this Court said:11
(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
(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.
(c) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal.
[27] On the evidence, the Tribunal was entitled to reach the decision it did and there is no error of law. However, Ms Schaaf also argued that, given the evidence about Gurleen’s health, the Tribunal ought to have made further inquiries. I do not accept this submission. The Act makes it clear that the appellant bears the
responsibility of establishing his or her claim before the Tribunal and ensuring all
11 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
information they wish to have before it is provided.12 In particular s 228(2) of the
Immigration Act expressly states:13
The Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister … and may determine the appeal or matter only on the basis of the information, evidence and submissions provided.
[28] Ms Schaarf relied on the High Court’s decision in Wu v Minister of Immigration in which leave was granted to appeal on the issue of whether the Tribunal may have had a duty to inform itself further about the legal status of the applicant’s daughter under Chinese law.14 The Court considered the Supreme Court’s statement in Ye that there “may be circumstances in which the parent(s) cannot adequately represent the child’s interests” and that such cases may “involve officer’s making their own inquiries or seeking assistance”.15 The issue identified in Wu was whether s 228 had displaced the Tribunal’s potential duty to self-inform as envisaged in Ye. But the present case is not at all similar; it was not suggested that Kuljinder Kaur could not adequately represent Gurleen’s interests or present information relating to her health. As the Court of Appeal indicated in Fernandes v Immigration and Protection Tribunal, a duty to take active steps to make further inquiries is likely to arises only where there is a clear problem with the evidence such as “where something relatively obvious is not addressed by the parent(s)”.16
[29] Finally, Ms Schaaf argued that the Tribunal erred in considering this issue only in relation to the whether it would be “unjust or unduly harsh” to deport the applicants without expressly considering it at the earlier stage, under the Tribunal’s consideration of whether there existed exceptional humanitarian circumstances. This submission has no merit; it is well established that there will be some overlap between the sequential tests under s 207.17 Some facts will be relevant to more than
one element and the Court of Appeal has said that the “Tribunal is not bound … to
12 Immigration Act 2009, s 226.
13 Immigration Act 2009, s 228(2).
14 Wu v Minister of Immigration [2016 NZHC 1309.
15 Ye v Minister of Immigration, above n 10, at [48].
16 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [19].
17 Wu v Minister of Immigration, above n 14, at [11].
follow the artificial process of isolating consideration of certain facts and
circumstances to the discrete elements of what is a composite inquiry”.18
[30] On the second aspect of this proposed ground of appeal, Kuljinder Kaur gave evidence at the hearing of being slapped by her mother-in-law when she was in India and her fear that if she went back her in-laws would not let her stay in their house. Ms Schaarf also submitted that Kuljinder Kaur’s ability to live with her in in-laws in India was a major issue because if the children could not live with their mother at their father’s home they will face significant overcrowding in their mother’s family home, but the Tribunal omitted to consider this issue altogether.
[31] No error of law arises from this submission. Kuljinder Kaur’s evidence about the relationship with her mother-in-law was at a very general level. The Tribunal did not accept that a factual basis for the fears expressed was made out:
The difficulties that [Kuljinder] fears with this family have not been adequately proved.
[32] The Tribunal was entitled to reach the conclusion it did on the evidence before it. As a result there was no need to specifically consider the possibility that Kuljinder Kaur and her daughters would not have a home with her husband. But in any event, the Tribunal went on to observe that “with at least the emotional support of their family and the savings they have accrued in New Zealand, they may re- establish their lives in India”. Clearly, the Tribunal was satisfied that there was no real risk of the family having nowhere adequate to live, though it recognised that living conditions were likely to be lower than in New Zealand.
[33] Ms Schaarf also submitted that the Tribunal should have considered this issue at the earlier “humanitarian circumstances” stage. I have already considered this argument.
[34] In summary, the Tribunal was clear when discussing whether there were exceptional humanitarian circumstances that the interests of the children were a
primary consideration. It was alert to the issue that had been raised over Gurleen’s
18 Wu v Chief Executive, Ministry of Business, Innovation & Employment at [11].
health but was not satisfied as to any ongoing health concern. Nor was it satisfied regarding the likely dynamic between Kuljinder Kaur and her in-laws.
[35] Ms Schaaf argued that the issues raised by Kuljinder Kaur (Gurleen’s health and Kuljinder Kaur’s relationship with her in-laws) should also have been considered in relation to Mr Singh and Mrs Kaur in terms of the flow-on effect they had. Essentially, the submission was that those issues should have led to the conclusion that humanitarian circumstances existed in relation to Kuljinder Kaur and that if she remained in New Zealand it was necessary to allow her parents to remain as well to provide support for her and her daughters. This is because Kuljinder Kaur and her parents currently live in a different city from the only other family member in New Zealand, Kuldeep Kaur, and it is very unlikely that Kuljinder Kaur’s husband will be allowed to come to New Zealand. However, given the conclusion I have already reached in relation to Kuljinder Kaur’s circumstances this submission cannot succeed.
Was the Tribunal’s conclusion on the children’s best interests illogical or unreasonable?
[36] In concluding that none of the applicants had established exceptional circumstances of a humanitarian nature, the Tribunal specifically considered the position of Kuljinder Kaur’s two daughters:
The daughter’s older New Zealand citizen child (now aged 3½) lived the first six months of her life in New Zealand then the next 11 months in India and since then has lived in New Zealand. Her younger sister (now aged 21 months) has lived in New Zealand all her life. Apart from the 11 months that the older child lived in India, the two children have lived apart from their father. He has repeatedly and unsuccessfully attempted to obtain visas to enter New Zealand and there is no guarantee that he will gain entry in the future. The result is that, if the children remain in New Zealand they face the real prospect of having to live with only one parent. Their mother states that, while the children are doing well in New Zealand, they really need the love and support of their father. The Tribunal therefore finds that the best interests of the two children lie with them living with both their parents.
[37] Ms Schaaf submitted that this conclusion ignores the fact that the children have already been separated from their father for an extended period of time and that Kuljinder Kaur told the Tribunal that she would stay in New Zealand even if it meant
being separated from her husband because of the consequences on the children of a return to India.
[38] A review of the transcript of the Tribunal hearing suggests that the Tribunal’s findings did not reflect Kuljinder Kaur’s evidence exactly. Kuljinder Kaur was clear that she wanted to have her children with her but did not want to take them back to India. It is true that she told the Tribunal that her eldest daughter missed Kuljinder Kaur’s husband, the child’s father, and acknowledged that it was important for the family unit to be together. But she qualified those concessions by saying that she wanted her husband to come and live in New Zealand but did not want to spoil her children’s lives by taking them back to India and that if staying here meant living without her husband then that is what she would do.
[39] It follows that the Tribunal’s finding that it was in the children’s best interests to live with both parents was not based on any concession or statement made by Kuljinder Kaur herself. Indeed, on the evidence, the elder daughter had spent all but
11 months of her life without her father and the younger child had never met her father.
[40] Nevertheless, the Tribunal’s assessment of where the children’s best interests lay and whether humanitarian circumstances existed that would make deportation unjust or unduly harsh in relation to them was open to it. It was entitled to weigh up the fact that in New Zealand the children have the close support of their mother and maternal grandparents and the benefit of life in New Zealand, which the Tribunal acknowledges is superior in terms of housing, employment and educational opportunities than in India for these children, against the fact that returning to live in India with their mother and grandparents would mean that the children could live with their father and have the emotional support of a large extended family on both sides. It was entitled to take the view that, given their age the children could be expected to adapt to a new environment and that the situation was mitigated by the fact that, as New Zealand citizens they would always have the right to return to New Zealand.
[41] The Tribunal may have erred in its re-statement of Kuljinder Kaur’s evidence. But it was not an error that could justify leave to appeal. It is clear that the Tribunal fully appreciated the competing considerations in assessing what was in the children’s best interests. Its conclusion was not illogical or unreasonable.
Error in the Tribunal’s statement that it did not matter whether there was an intention to conceal information or provide misleading information when considering whether it would be unjust or unduly harsh to deport the applicants?
[42] The Tribunal began its consideration of this issue by reminding itself of the statement by the Supreme Court in Guo v Minister of Immigration, that the assessment of whether it would be unjust or unduly harsh for the appellants to be deported was to be made “in light of the reasons why the appellant is liable for deportation order involves a balancing of those considerations against the
consequences for the appellant of deportation”.19 The Tribunal then identified the
fact that the appellants’ liability for deportation had arisen because of the concealment of information about the family, which led to the family’s centre of gravity being wrongly assessed.
[43] In any event, however, the Tribunal acknowledged the applicants’ assertion that they were innocent of any intention to mislead Immigration New Zealand or to conceal the existence of the other four children in the family but, citing Pal v Minister of Immigration, said:20
There does not need to be intention to commit fraud before it can be determined that a person’s residence was wrongly procured; and no subjective element is required.
[44] But, in any event, the Tribunal went on to consider the circumstances in which incorrect information had been given about the composition of the family and concluded that:
Thus, on nine occasions, over the course of more than ten years, members of the appellants’ family maintained to Immigration New Zealand the story of the husband and wife having only two daughters and the existence of the husband and wife’s other daughter and three sons in India was consistently concealed. Viewed in this context, the appellants’ claims that they were not
19 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
aware of the absence of their four children in India from the information they provided and of the importance of this information or that they misunderstood what was being asked of them, are not credible.
[45] Ms Schaaf acknowledged the Tribunal’s credibility finding and did not seek to challenge that. Her concern was that, although an intention to conceal or mislead is not required for liability for deportation,21 fault is a relevant consideration in determining whether it would be unjust or unduly harsh for the applicants to be deported and the Tribunal had failed to proceed on this basis.
[46] I do not accept that the Tribunal did make this error. It is clear from its identification of the basis for the “unjust or unduly harsh” assessment discussed in Guo v Minister of Immigration and its adverse credibility finding on this point that the Tribunal did consider whether or not the applicants’ liability for deportation had arisen through their own fault.
The “for any other reason” limb
[47] Finally, Ms Schaaf argued that the applicants were also relying on the “for any other reason” limb of s 245(3) on the basis that the issues raised in this case and canvassed in Wu would set a precedent and therefore have general importance. This submission is not tenable. As I have already found,22 this application does not raise the same issues as Wu and it is not seriously arguable that the Tribunal was under a duty to seek further information. There is no aspect of this case that would justify a second appeal.
Result
[48] Leave to appeal is refused. The application is dismissed.
P Courtney J
21 Immigration Act 2009, s 158.
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