Kumar v Minister of Immigration

[2016] NZCA 492

IN THE COURT OF APPEAL OF NEW ZEALAND

CA400/2016
[2016] NZCA 492

BETWEEN	PRAKASH SUDHIL KUMAR Applicant
AND	MINISTER OF IMMIGRATION First Respondent
AND	IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent

Hearing:	3 October 2016
Court:	Kós P, Harrison and Brown JJ
Counsel:	R S Pidgeon and R K Nand for Appellant B C L Charmley for Respondent No appearance for Second Respondent
Judgment:	11 October 2016 at 11 am

JUDGMENT OF THE COURT

AThe application for leave to appeal and commence judicial review proceedings is declined. 

BThe applicant must pay the first respondent costs as for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Mr Kumar is a Fijian citizen.  He obtained a New Zealand work permit in 2006 and residence permit in 2007.  In part, on the basis of his marriage to a New Zealand citizen, his cousin.  The marriage was dissolved after 18 months in 2009.  Family members alleged it to be a marriage of convenience.  Immigration New Zealand investigated and Mr Kumar was served with a deportation liability notice in October 2014.  Mr Kumar appealed the notice to the Immigration and Protection Tribunal, but was unsuccessful. 

2. Mr Kumar then sought leave to appeal[1] and commence a judicial review proceeding[2] in the High Court in relation to the decision of the Tribunal dismissing his appeal against the notice.  Woodhouse J dismissed that application.[3]  Where leave is refused in the High Court, the applicant may reapply to this Court.  Mr Kumar so applies.[4] 

Grounds upon which leave is sought

[1]Immigration Act 2009, s 245.

[2]Section 249.

[3]Kumar v Minister of Immigration [2016] NZHC 1593.

[4]Sections 245(1) and 249(3).

1. There is a degree of disjunct between the original grounds notified and those pursued in Mr Pidgeon’s written submissions.  Those submissions advance four grounds:

   (a)That the Tribunal erred in rejecting the applicant’s claim that he was the victim of a vendetta and in concluding that he had submitted false information to Immigration New Zealand to obtain a residence permit. 

   (b)He was not complicit in the misrepresentations associated with his residence permit and that should weigh in his favour on his humanitarian appeal.

   (c)The interests of his child and unborn child (to his second wife) should render his humanitarian appeal successful; and

   (d)That the scope of the “any other reason” limb of ss 245(3) and 249(6)(b) of the Immigration Act 2009 require this Court’s consideration. 

Discussion

1. The effect of ss 245 (dealing with appeal) and 249(6) (dealing with judicial review) is that in each instance the applicant must establish that the appeal raises a question of law, or the judicial review proceeding raises issues that could not adequately be dealt with by appeal, and which ought to be decided by the High Court because of:

   (a)their general or public importance; or

   (b)“any other reason.”

2. As to the first two grounds, it is plain to us that the proposed appeal and judicial review are in substance an attempt to secure a de novo rehearing in the High Court.  The factual conclusions reached by the Tribunal in this case were ones clearly available to the Tribunal after a contested hearing involving cross‑examination that ran for some five days.  The Tribunal found the evidence of Mr Kumar not credible in contrast to evidence given by other witnesses.  This is not a case where it can be said that an error in law has been made by reason either of an absence of evidential underpinning, or an evaluation on evidence that was not reasonably available to the Tribunal.[5]  Nor has any other judicial review ground which has any prospect of success been demonstrated on Mr Kumar’s submissions.  We cannot add usefully to the analysis of Woodhouse J on these two grounds.[6]

   [5]D’Arcy-Smith v Natural Habitats Ltd [2016] NZCA 20 at [13]–[15].

   [6]Kumar v Minister of Immigration, above n 3, at [44]–[55].

3. As to the third ground, the Judge found that the Tribunal had not misdirected itself on the applicable law and that no seriously arguable error of law or ground for judicial review was identifiable.[7]  We agree.  We accept Ms Charmley’s submissions that the Tribunal had given genuine consideration to the interests of Mr Kumar’s son.  That interest is important.  It requires genuine consideration.  But it does not mandate any particular outcome or any particular weight in contrast to other relevant factors.[8]  The fact Mr Kumar and his wife are now expecting another child is not a sufficient change in circumstance to require the Tribunal’s analysis of humanitarian consequences to be revisited.  Mr Pidgeon sought also to rely on the innominate ground for judicial review on the basis that there has been “cumulative impropriety” by the Tribunal.  By this we understood him to mean a series of procedural failings, rather than bad faith, though the terminology is inapt.[9]  We agree however with Woodhouse J that the matters relied on by Mr Kumar do not reach the requisite threshold to amount to a seriously arguable ground of judicial review.[10]  

   [7]At [57].

   [8]Ye v Minister ofImmigration [2009] NZSC 76, [2010] 1 NZLR 104 at [25].

   [9]See the useful discussion of the innominate ground of judicial review and “cumulative impropriety” in AI (Somalia) v Immigration & Protection Tribunal [2016] NZHC 2227 at [38]‑[46].

   [10]Kumar v Minister of Immigration, above n 3, at [60]–[61].

4. Finally we turn to the fourth ground advanced by Mr Kumar.  The decision of this Court in Machida v Chief Executive, Ministry of Business, Innovation and Employment concerns the meaning of the “any other reason” limb of s 245(3) — in the context of appeals.  The Court held that that limb would be engaged only in exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the first instance decision standing.[11]  There has been some discussion in the High Court as to whether the same principles apply in the case of judicial review under s 249(6)(b) of the Act.[12]  Ms Charmley submits that the same test applies under each limb, and those High Court authorities suggesting that a different position may pertain are wrong and unsupported by authority.[13]  We do not consider this an appropriate case to resolve that argument.  That is because Mr Kumar has not demonstrated to us any substantive ground of judicial review with a prospect of success such as to make the last question other than moot. 

Result

[11]Machida v Chief Executive, Ministry of Business Innovation & Employment [2016] NZCA 162, [2016] NZAR 662, at [8].

[12]RM v Immigration Protection Tribunal [2016] NZHC 735 at [35]–[37]; AI (Somalia) v Immigration and Protection Tribunal, above n 9, at [32]–[35]; Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [16]–[19] compare X v Immigration Protection Tribunal [2014] NZHC 1647 at [34]; CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [77]–[78].

[13]These being the RM, AI and Hu decisions referred to in the preceding footnote.

1. The application for leave to appeal and to commence judicial review proceedings is declined. 

2. The applicant must pay the first respondent costs as for a standard application on a band A basis together with usual disbursements.

Solicitors:
Patel Nand Legal, Auckland for Applicant
Crown Law Office, Wellington for First Respondent