Kumar v Minister of Immigration
[2016] NZHC 1593
•15 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-000302 [2016] NZHC 1593
UNDER the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal
BETWEEN
PRAKASH SUDHIL KUMAR Applicant
AND
THE MINISTER OF IMMIGRATION First Respondent
…/cont
Hearing: 30 June 2016 Appearances:
R S Pidgeon and R K Nand for the Applicant
Z Johnston for the First RespondentNo appearance by or on behalf of Second Respondent (abiding decision of the Court)
Judgment:
15 July 2016
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 15 July 2016 at 4 pm
Pursuant to Rule 11.5 of the High Court Rules
----------------------------------------------------- Registrar/Deputy Registrar
Solicitors: Crown Solicitors, Auckland
Patel Nand Legal, Auckland
Counsel: R S Pidgeon, Auckland
KUMAR v MINISTER OF IMMIGRATION [2016] NZHC 1593 [15 July 2016]
CIV-2016-404-000305
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009
IN THE MATTER
of an application for leave to bring a
Judicial review applicationBETWEEN
PRAKASH SUDHIL KUMAR Applicant
AND
THE MINISTER OF IMMIGRATION First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
[1] The applicant, Mr Kumar, seeks leave under the Immigration Act 2009 (“the Act”) to bring an appeal, and a judicial review proceeding, in respect of a decision of the second respondent Tribunal dismissing his appeal against a deportation liability notice issued by the first respondent (“the Minister”).1
Background facts
[2] Mr Kumar is a Fijian citizen. He arrived in New Zealand in 2005 on a
business visitor’s visa.
[3] On 4 May 2006 Mr Kumar married his paternal first cousin, Ravnita Kumar, in New Zealand.2 Ravnita Kumar is a New Zealand citizen. On 14 June 2006
Mr Kumar applied for a work permit based on his partnership with Ravnita Kumar as a New Zealand citizen. This permit was granted on 11 July 2006.
[4] On 1 December 2006 Mr Kumar applied for a residence permit under the
Family (Partnership) category, and again on the basis of the marriage to
Ravnita Kumar. The residence permit was granted in July 2007.
1 Kumar v The Minister of Immigration [2016] NZIPT 600155.
2 As noted at [5], the marriage was dissolved in February 2009. Ravnita Kumar has since remarried. I refer to her in this judgment as “Ravnita Kumar” to avoid any confusion and for convenience. I intend no discourtesy in doing so.
[5] On 22 December 2008, Mr Kumar applied to a court in Fiji for an order dissolving his marriage. A dissolution order was made in February 2009.
[6] In August 2009 Mr Kumar married Pratika Singh. Pratika Singh is a Fijian citizen. She was, and still is, living in New Zealand. She holds a work visa which expires on 4 November 2018. Mr Kumar and Mrs Singh have a three year old son. He is a New Zealand citizen.
[7] In October 2008 and April 2009, Immigration New Zealand received anonymous letters alleging that the marriage of Mr Kumar and Ravnita Kumar was a marriage of convenience. A further letter was received in October 2010, written by a lawyer on behalf of Archana Kumar. Archana Kumar is married to Ravnita Kumar’s adoptive brother. In evidence to the Tribunal, Archana Kumar acknowledged that she was the author of the two anonymous letters.
[8] In late 2010 Immigration New Zealand commenced an investigation into the applications made by Mr Kumar in 2006 for the work permit and then for the residence permit. During the investigation Mr Kumar was provided with several opportunities to comment on information that was prejudicial to him and he did so through his lawyer.
[9] In October 2014 Immigration New Zealand concluded that the work and residence permits had been obtained through misleading representations, or concealment of relevant information, contrary to s 158(1)(b)(ii) of the Act. This provision is recorded below.
[10] A deportation liability notice signed by the Minister was served on Mr Kumar on 3 October 2014. The terms of the notice are relevant to Mr Kumar’s challenge to the validity of the deportation decision. A copy of the notice itself has not been put in evidence in this Court. There is a summary in the Tribunal decision.3 The content is set out in a little more detail in opening submissions for the Minister to the Tribunal, and part of what is contained in those opening submissions is directly
quoted in closing submissions to the Tribunal for Mr Kumar. There is no dispute
3 Above n 1 at [14].
between the parties as to the general content and I will record it using an amalgamation of those sources of information.
[11] The deportation liability notice stated:
(a) Mr Kumar’s work permit application included manipulated photographs. These photographs were part of the evidence relied on by the officer assessing the subsequent residence application in determining whether his relationship with Ravnita Kumar was genuine and stable.
(b)Mr Kumar’s residence application included a forged support letter purportedly from Ritesh Charan (Archana Kumar’s brother). The letter was part of the evidence relied on by the officer assessing the application determining whether the relationship with Ravnita Kumar was genuine and stable.
(c) Mr Kumar declared in his residence application that he lived at
4 Kaweka Street, New Lynn, the home of Ravnita Kumar’s adoptive parents and where she also lived. Mr Kumar did not divulge that for some of the time he lived at a house in Carr Road, Mt Roskill. The information that Mr Kumar and Ravnita Kumar lived at the Kaweka Street address was part of the evidence relied on by the officer assessing the application in determining whether Mr Kumar and Ravnita Kumar were living together. Mr Kumar’s explanation that he and Ravnita Kumar spent time at the Carr Road address was also taken into account.
(d)Some weight was placed on advice from Ravnita Kumar that she had been forced to marry Mr Kumar otherwise he would have taken over the business of her natural father in Fiji. The explanation from Mr Kumar and “his agent” in this regard was also taken into account.
Statutory provisions: deportation liability and grounds of appeal
[12] I record here the relevant sections of the Act that relate to the deportation liability notice and the grounds of appeal by Mr Kumar to the Tribunal in respect of the deportation liability. Two of the sections, 158 and 202, were amended in 2015. The amendments do not apply to Mr Kumar’s case. The text below is that of the provision in force at the time.
Section 158: deportation liability
[13] Section 158 of the Act prescribes circumstances in which the holder of a residence class visa (as it is now termed) will be liable for deportation. The relevant provisions are as follows:
(1) A residence class visa holder is liable for deportation if—
…
(b) the Minister determines that—
(i) the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
(ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information.
…
(3) A person liable for deportation under this section may, not later than
28 days after the date of service of a deportation liability notice, appeal to the Tribunal against his or her liability for deportation—
…
(b) on the facts and on humanitarian grounds, if subsection
(1)(b) applies.
Grounds of appeal to the Tribunal
[14] Mr Kumar exercised both rights of appeal under s 158(3)(b) - “on the facts”
and on “humanitarian grounds”.
[15] An appeal on the facts is governed by s 202. The relevant part is as follows:
202 Grounds for determining appeal on facts
The Tribunal must allow an appeal against liability for deportation on the facts where,—
…
(c) in the case of an appellant liable for deportation under section
158(1)(b), the Tribunal is satisfied, on the balance of probabilities, that—
(i) the resident visa or permanent resident visa or entry permission concerned was not procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
(ii) the resident visa or permanent resident visa had not been granted to the person on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information:
…
[16] Mr Kumar’s appeal on humanitarian grounds is governed by s 207(1), 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.
The Tribunal hearing and decision
[17] In the Tribunal Mr Kumar contended that his marriage to Ravnita Kumar was a genuine one arising out of love they had for each other, that their marriage was genuine and stable, and they had intended to stay together for the rest of their lives. He said that he had not provided misleading information to Immigration New Zealand and that, although he had presented 50 photographs in support of his application, he had no knowledge of the two or three further photographs that were
doctored, or the support letter with the allegedly forged signature. He contended that the documents, and other information provided to Immigration New Zealand, as well as the complaints from Archana Kumar, were part of a personal vendetta against him because the marriage to Ravnita Kumar had not worked out. He denied that any pressure had been put on Ravnita Kumar to marry him. There was further evidence from Mr Kumar directed to his appeal on humanitarian grounds. This is summarised later.
[18] There was supporting evidence, in respect of the appeal on the facts and on humanitarian grounds, but it is unnecessary to summarise this. Relevant aspects are taken into account in the evaluation of the applications for leave.
[19] For the Minister there was evidence from Ravnita Kumar, Archana Kumar, Ritesh Charan, and a police document examiner.
[20] Ravnita Kumar’s evidence is important in relation to the applications for leave. There was no challenge to the summary of the evidence by the Tribunal (or to the summary of the evidence by the Tribunal of other witnesses, on both sides). The evidence of Ravnita Kumar may be summarised as follows: her marriage to Mr Kumar was not genuine; there was no “love bond” between them; she was forced to marry him, otherwise he would take over her father’s business in Fiji; photographs of her with Mr Kumar were all “staged” so that it would appear that they were a couple when they were not; there was no sexual relationship; Mr Kumar was like a brother to her. Apparent love letters between Ravnita Kumar and Mr Kumar were produced. Ravnita Kumar said she never wrote any love letters to Mr Kumar and also that she had not, contrary to what appeared to be the case, signed his sponsorship form for residence. She was adamant that she and Mr Kumar never lived together at either of the addresses earlier referred to – Kaweka Street and Carr Road.
[21] Archana Kumar said, amongst other things, that she lived at Kaweka Street over the relevant period and that Mr Kumar never lived there. Mr Charan denied signing the letter of support.
[22] The document examiner for the Minister, Ms Owen, was unable to express a conclusion on authorship of the apparent love letters. She provided unchallenged evidence that two photographs, which had been submitted with the work permit application, had been manipulated. She gave evidence that the purported signature of Ritesh Charan on the support letter was a forgery. There was evidence from another document examiner on behalf of Mr Kumar. She expressed reservations on some aspects of Ms Owen’s methodology, but it is clear from the evidence, and the Tribunal’s conclusions, that this arose simply from the other document examiner’s misunderstanding of the facts in relation to Ms Owen’s investigation.
[23] The witnesses, or at least principal witnesses, were cross-examined. I apprehend that some of the cross-examination may have been lengthy; the hearing took five days.
Tribunal findings on the appeal on the facts
[24] The Tribunal set out, in some detail, reasons for concluding that it did not accept Mr Kumar’s evidence. Following this there were express findings of fact, as follows:
Findings as to the Facts
[89] The Tribunal finds that, in the course of his residence application, the appellant submitted to Immigration New Zealand information which was false, in that he:
(a) submitted a forged letter of support purporting to be from
Mr Charan;
(b) failed to advise Immigration New Zealand that he did not always live with Ravnita at the Kaweka Street address; and
(c) that he provided manipulated photographs of himself and
Ravnita to bolster his 2006 work permit application.
[90] As to the other allegation, that his marriage to Ravnita only occurred because she wanted to prevent him from taking over her fathers’ business, it is of little weight because knowing Ravnita’s motives does not establish the appellant’s.
[91] It is on these findings of fact that the appeal on the facts must be determined.
[25] The Tribunal then set out and discussed ss 158(1)(b) and 202(c) of the Act, and made further findings of fact as follows:
[98] The Tribunal rejects the appellant’s claims that he is the victim of a personal vendetta by Archana. That assertion is not supported by the evidence.
[99] It was submitted that there was other evidence by which Immigration New Zealand could, nevertheless, have found that the appellant and Ravnita were living together in a genuine relationship. The submission is misconceived. The forged letter of support, the appellant’s failure to divulge he was living at a separate address, and the manipulated photographs was information which procured him a work permit and, ultimately, a resident permit.
[100] Manipulated photographs had been provided as part of the appellant’s 2006 work permit application. The forged letter of support was provided as part of his residence application. In both applications, the appellant failed to disclose to Immigration New Zealand that he did not always live with Ravnita. That information was relevant as to whether the couple were living in a genuine and stable relationship.
Conclusion on Appeal on the Facts
[101] The appellant has not demonstrated, on the balance of probabilities that his residence class visa was not granted on the basis of a visa procured through misleading representation.
[102] The appellant’s appeal on the facts is declined.
Tribunal findings on the appeal on humanitarian grounds
[26] The principal matters relied on by Mr Kumar in support of his appeal on humanitarian grounds were, in summary:
(a) He would be separated from his second wife and son who would both remain in New Zealand if he was deported.
(b)He would suffer distress and sadness at having to leave New Zealand where he had lived for some 10 years.
(c) There would be harm to his father’s vegetable export business in Fiji because the sole customer was a business run in New Zealand by Mr Kumar and his sister.
(d)There was concern as to the quality of health care, education, and state funded social support in Fiji, and in respect of political stability.
(e) Mr Kumar’s second wife, Mrs Singh, also expressed concern about how she would be treated by her own family in Fiji if she had to return, and she expressed concerns about Fiji’s political instability.
[27] The Tribunal directed itself to the Supreme Court’s analysis, in Ye v Minister of Immigration, of s 47(3) of the Immigration Act 1987, which is essentially the same as s 207(1) in the current Act.4 The Tribunal applied that test in its evaluation of the range of circumstances advanced by and for Mr Kumar and provided reasons for its conclusion on individual matters as to why they did not amount to exceptional circumstances. It also concluded, weighing the various factors cumulatively, that
there were no exceptional circumstances of a humanitarian nature.
Applications for leave: statutory provisions
Section 245: application for leave to appeal
[28] An application for leave to appeal is governed by s 245, which relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made 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 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
Section 249: Judicial review
[29] The relevant provision on applications for leave to bring a judicial review proceeding is s 249, as follows:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(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 those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
Applications for leave: the limits
[30] In Waller v Hider the Court of Appeal said in respect of applications under s 67 of the Judicature Act 1908 for leave to appeal to the Court of Appeal, following an appeal from an inferior court to the High Court: 5
Notwithstanding frequent reminders of the test, applications continue to be made [for leave to appeal] which have little or no prospect of success. Counsel are, of course, to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.
[31] Those observations also apply to what appears to be a considerable proportion of the applications for leave under ss 245 and 249 of the Act. The Court of Appeal’s observations perhaps apply with greater force to applications under ss 245 and 249 because those provisions are substantially more restrictive than s 67 of the Judicature Act.
[32] The legislative history of Immigration Acts indicates Parliament’s intention over time increasingly to restrict rights to bring appeals and judicial review proceedings, and to subject proposed challenges to greater preliminary scrutiny by the High Court. Under the Immigration Act 1987 an appeal could only be brought on a point of law, as is now the case, but it could be brought as of right.6 That is not the case now under s 245. Under the 1987 Act there was no requirement for leave to bring a judicial review proceeding. There was also no leave requirement for judicial
review when the 2009 Act came into force. The only relevant restriction was that a review proceeding could not be brought if the original decision could be subject to an appeal to the Tribunal; a restriction now contained in s 249(1) and (3). The
further restrictions now contained in s 249 were added by s 10 of the
5 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
6 As noted in Taafi v Minister of Immigration [2013] NZAR 1037 at [18].
Immigration Amendment Act 2013. The text quoted above followed further amendments in the 2015 Amendment Act, but there was no change to the substance.7
[33] It is not every error that can justify leave. Although the proposition should be self-evident, it warrants emphasis. Leave cannot be granted unless, amongst other things, the criteria in ss 245(3) and 249(6) are met. There is no express statement that, if the criteria are not met, leave must be refused. But in my opinion that is the clear implication. In Allada v Immigration and Protection Tribunal, Asher J was of
the same opinion.8
[34] In Minister of Immigration v Jooste the Court of Appeal said that the test for leave in s 245 is similar to that stated in Waller v Hider in respect of s 67 in the Judicature Act 1908.9 This is as follows:10
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 the further appeal.
[35] I agree with Asher J in Allada that the Waller v Hider test applies also to applications for leave under s 249 to bring judicial review proceedings.11 In consequence, the merit of proposed grounds for judicial review require scrutiny, as do the merits of proposed points of law for an appeal: are they capable of bona fide and serious argument?
[36] The restrictive nature of the Waller v Hider test, when applied to ss 245 and
249, is not diminished by the fact that s 67 of the Judicature Act is directed to a
7 Reasons for, and the extent of, the restrictions were discussed by Palmer J in RM v Immigration and Protection Tribunal [2016] NZHC 735 at [39] – [41].
8 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [32].
9 Minister of Immigration v Jooste [2014] NZCA 23 at [5], followed in Guo v Minister of
Immigration [2014] NZCA 513 at [11]. The Court of Appeal’s decision in Guo was overturned by the Supreme Court in Guo v Minister of Immigration [2015] 15 NZSC 132, [2016] 1 NZLR
248, but the Supreme Court made no reference to the Court of Appeal’s observations on the application of the leave test.
10 Waller v Hider, above n 5 at 413, applying Rutherfurd v Waite [1923] GLR 34 (SC) and
Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346-347.
11 Allada v Immigration and Protection Tribunal, above n 8 at [36].
second appeal to a superior court, whereas ss 245 and 249 are concerned with a first appeal to a superior court.12
[37] The Waller v Hider test refers to both public or private matters sought to be taken on appeal. Sections 245 and 249 do not in express terms refer to private interests that must be taken into account; only to issues of “general or public importance”. But both provisions also refer to “any other reason”. The scope of this provision was discussed by Palmer J in RM v Immigration and Protection Tribunal.13
The Judge disagreed with a narrow interpretation suggested by Duffy J in
LMN v Immigration and Protection Tribunal, as follows:14
… By enacting the high threshold in s 245, Parliament has vested the Tribunal with a jurisdiction that permits it to make errors of law on the face of the record, providing such errors have no effect beyond that of the appellant.
This interpretation has been applied to s 249.15 I agree with Palmer J that the words “any other reason” should not be interpreted as restrictively as suggested by Duffy J. The court’s discretion is not unfettered, but it is expressed in wide terms.
[38] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal, in a judgment delivered by Kós J, said in respect of the “any other reason” category:16
Although [this category] is open ended, we agree 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.
(Footnote omitted)
[39] The Court was approving a statement of Kós J in the High Court in
Taafi v Minister of Immigration.17 It is unclear whether the Court of Appeal intended
its statement as to the scope of “any other reason” to be applicable to all grounds on
12 Guo v Minister of Immigration, above n 9, at [11]; And see RM v Immigration and Protection
Tribunal, above n 7 at [34].
13 RM v Immigration and Protection Tribunal, above n 7 at [35]-[51].
14 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [34].
15 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [6].
16 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at [8].
17 Taafi v Minister of Immigration, above n 6 at [19(c)].
which leave might be sought, or only to those applying in Taafi. Taafi was concerned only with an application under s 245 and, as the Judge put it, the grounds for leave were “based wholly upon criticisms of factual findings” of the Tribunal. The Judge outlined the “triple hurdle” faced by an applicant contending that there has been an error of law in a finding of fact.18
[40] The scope of the “any other reason” category does not appear to have been argued in Machida. The words “any other reason”, as used in s 245(3) and s 249(6)(b), must have the same general meaning and scope. But the application of the words will be affected, and perhaps substantially, by the nature of the issue the applicant seeks to advance. This is likely to apply, in particular, under s 249, because of the wide range of matters covered by judicial review, compared with a contention under s 245 that a finding of fact amounted to an error of law. As Palmer J observed in RM v Immigration and Protection Tribunal, the Ministry of Justice advised the Attorney-General, that the wording of the amendment clause leading to s 239(6) was consistent with the Bill of Rights, because under the amendment “the Courts have a wide discretion to grant leave for judicial review
where it is a matter of ‘general or public importance or any other reason’”.19 (The
emphasis in the quoted passage is from the original).
[41] Although the words “or any other reason” in s 239(6)(b) are not constrained in any express way by the text, and at least on the basis of the advice from the Ministry a wide discretion was contemplated, there is a preliminary consideration under s 249(6)(a) which does impose a substantial limit on applications for judicial review. This is the need to establish that the proposed issues on review could not adequately be dealt with by appeal. Because of this provision, and stated in general terms, the applicant would not be entitled to bring a review proceeding, and irrespective of whether the applicant had also sought leave to appeal, if the proposed grounds for review alleged errors of law. The preliminary hurdle in s 249(6)(a) is
therefore likely to exclude from leave to bring a judicial proceeding many, and
18 Taafi v Minister of Immigration, above n 6 at [19(a)-(c)].
19 RM v Immigration and Protection Tribunal, above n 7 at [35] referring to Legal Advice from
Ministry of Justice to Attorney-General: “Consistency with the New Zealand Bill of Rights Act
1990: Immigration (Mass Arrivals) Amendment Bill” (3 April 2012) at [29].
perhaps all, of the cases founded on illegality. This may apply to many cases for leave that are brought under s 249.
Evaluation
[42] The grounds on which Mr Kumar has sought leave, to appeal and to bring a judicial review proceeding, have varied to a reasonable extent as the applications have progressed through the Court: from those recorded in the original applications, through written submissions, and to the final arguments advanced by Mr Pidgeon at the hearing. Identifying the scope of issues which remain alive, and the essence of extant arguments, has not been entirely straightforward. To ensure that Mr Kumar’s case is properly addressed I will therefore err on the side of caution and cover matters which may still be live issues as well as those that clearly are in this evaluation. This caution also applies in respect of specific grounds or arguments where it is not entirely clear whether they are advanced both under s 249 as well as s
245; matters of that nature will be treated as applicable to both applications for leave.
[43] Under the subheadings that follow I will consider the various grounds advanced, based on a draft statement of claim for judicial review, a table presented at the beginning of Mr Pidgeon’s original written submissions, and a one-page written summary helpfully provided by Mr Pidgeon at the commencement of the hearing.
Grounds for leave under s 245 and s 249 in respect of the appeal on the facts and on humanitarian grounds
Standard of proof
[44] In the draft statement of claim Mr Kumar alleged:
[The Tribunal] failed to take into account the gravity of the allegations in setting a standard of proof proportionate to the same. This meant that the self-interested witnesses for [the Minister] were extended a degree of credibility which admitted contemporaneous documentary to be overcome [sic] by their oral evidence. The subsequent events in relation to the control of the competing business operated by the witnesses for [the Minister] was not [sic] taken into account in setting credibility [sic].
There were related pleadings directed to the Tribunal’s assessment of credibility.
[45] Mr Pidgeon recognised that an argument articulated in this way was untenable. Section 202(c) expressly states not only that the standard of proof is the balance of probabilities, but also that the onus is on the appellant before the Tribunal. That is to say, the onus was on Mr Kumar to establish, on the balance of probabilities, that his residence visa had not been granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information.
[46] Mr Pidgeon modified the argument. He submitted that, given the gravity of the allegations, which in general he referred to as allegations of fraud, strongly probative evidence should be required. The point was not developed by any detailed reference to leading authorities. It was discussed in some detail by the Supreme Court in Z v Dental Complaints Assessment Committee, and with reference to leading authorities in Australia and the United Kingdom.20
[47] This more refined argument does not indicate a seriously arguable point of law that could be advanced on appeal, or grounds for judicial review. The determinative reason for that conclusion is that the onus was reversed; it was on Mr Kumar to persuade the Tribunal, on a straightforward application of the balance of probabilities, that there was no misrepresentation or relevant concealment by him of relevant information. There was no reasonably arguable error by the Tribunal in the standard of proof, or onus of proof, applied.
Relevant circumstances ignored: the vendetta against Mr Kumar: absence of fault
[48] Several related arguments arose out of Mr Kumar’s contention before the Tribunal that there was a vendetta against him by, in particular, Archana Kumar and Ritesh Charan (and perhaps, at least implicitly, supported by Ravnita Kumar). What seems to be at the heart of this contention was that doctored photographs and an apparently forged support letter were effectively planted by Archana Kumar and
Ritesh Charan.
20 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [94]-[112], referring in particular to Briginshaw v Briginshaw (1938) 60 CLR 336 (AHC) at 361-362 and Re H (Minors)(sexual abuse: standard of proof) [1996] AAC 563 at 586-587.
[49] This contention was given emphasis by Mr Pidgeon in the course of his oral submissions. He accepted that liability for deportation under s 158(1)(b) will be established notwithstanding the fact that the person to whom the visa was granted may have had no knowing part in the fraud, or other forms of deception, referred to in the subsection.21 As a result, it was in turn accepted that what may be termed lack of fault would not provide grounds for allowing an appeal on the facts under s 202 of the Act. But Mr Pidgeon argued that it provided grounds for allowing the appeal on humanitarian grounds, this was ignored by the Tribunal, and that error warrants granting of leave.22
[50] I accept, as a matter of principle, that absence of any relevant fault on the part of the holder of the visa would be relevant, and therefore require assessment, on an appeal on humanitarian grounds. And, in respect of the particular argument on this application, a good example could be a case where a fraud or other s 158 conduct was directed primarily against the applicant for the visa.
[51] These theoretical possibilities are of no assistance to Mr Kumar. To advance the argument, by way of appeal or judicial review, Mr Kumar would have to point to an error of law by the Tribunal, or some other judicially reviewable error. None has been pointed to, and none is indicated by a review of the Tribunal’s decision. The essence of Mr Kumar’s complaint under this heading, as under most of the other grounds for leave, is that the Tribunal was wrong in its findings of fact, in its adverse conclusions on Mr Kumar’s credibility, in assessing the reliability of the evidence presented by the other witnesses, on both sides, and in weighing that evidence. There is no question of law arising from any of this, and no bona fide and serious argument that might support an application for judicial review.
[52] There is a separate point to be made in the context of this ground for leave, and which applies to some of the other grounds under s 245 as well as s 249. There
21 In the former wording of s 158(1), which applies in this case, unlike the current wording, there was no provision to this effect, but the earlier provision, and a similar provision under the former Act, had been interpreted in this way: Rajan v Minister of Immigration HC Auckland M1151/94,
31 July 1995; Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240. The policy reason was explained in Chao Lai Heng v Minister of Internal Affairs HC Auckland M616/95, 24 April 1996. See now s 158(1A).
22 Although this specific contention was, in the end, confined to the humanitarian ground, the subject matter bears on other arguments directed to both grounds.
was much focus by Mr Kumar and his counsel, before the Tribunal and on the present applications, on individual pieces of evidence relied on by Immigration New Zealand in the first instance, and then accepted by the Tribunal to be reliable. The doctored photographs and the allegedly forged support letter, are the primary examples. The arguments for Mr Kumar, even if they might suggest an arguable point of law, or one open to judicial review, on specific findings of the Tribunal in relation to the photographs and the support letter, (and they do not) do not take matters close to providing seriously arguable grounds for granting leave under s 245 or s 249. This is because the primary objective of the enquiry by Immigration New Zealand was to determine whether what was represented to be a genuine and stable marriage, was in fact a genuine and stable marriage. It was not in issue that Mr Kumar, on his application for the work permit and then for the residence permit, was positively representing to Immigration New Zealand that it was a stable and genuine marriage. The application for the residence permit was made in reliance on the Family (Partnership) category. What Mr Kumar positively asserted, quite apart from his denial of knowledge of the doctored photographs and the forged support letter, was in direct conflict with the evidence of Ravnita Kumar that it was not a genuine marriage. And, on the question where each of them lived, Mr Kumar’s evidence was in direct conflict with the evidence of Archana Kumar, as well as that of Ravnita Kumar. When the issue of substance is identified, and the nature of the principal evidence in that regard identified, this entire case in large measure, in respect of the appeal on the facts, boils down to a conventional decision turning entirely on an assessment of evidence. There is no reasonably arguable ground for an appeal on a point of law, or judicial review, to the effect that the Tribunal was wrong to prefer the evidence of Ravnita Kumar and Archana Kumar.
The Tribunal’s assessment of a genuine marriage
[53] The argument under this heading was that there was an error of law by the Tribunal in failing to consider the definition of a “defacto relationship” in s 2D of the Property (Relationships) Act 1976. It was submitted that, had the Tribunal done so, matters of fact, which were taken to support the conclusion that there was not a genuine marriage, would not have been construed in that way. This submission was
supported by reference to an academic opinion on the impropriety of “ethnocentric”
analysis of marriage.23
[54] As with the argument based on lack of fault, at a level of general principle it may be arguable that a material error could arise because a relationship is viewed only from one cultural or social or moral perspective. But the general proposition is removed from the facts of this case as found by the Tribunal and now not open to challenge. The submission also runs counter to the factual basis upon which Mr Kumar earlier presented matters. His contention was that it was a genuine marriage of a conventional kind in New Zealand, without any emphasis on some special cultural aspects which might make it different from what an immigration officer might have been anticipating.
[55] The argument is an attempt to reconstruct the position after the event. This is in fact indicated by a rather unusual submission made to the Tribunal, in which Mr Kumar, on a central issue of fact, wanted to have it both ways. It was put as follows:
While it is maintained by the appellant that the Appellant and Ravnita were in fact living together throughout their marriage, if the Tribunal finds that they were not living together at all times then that still does not negate the fact that they were in a genuine relationship. There are many tests by which to test the legitimacy of a marriage and Property (Relationships) Act 1976 is one of them: It forms a relevant benchmark to test the evidence.
Arguments directed only to the humanitarian ground
Application of s 207
[56] The argument under this heading was founded on reasonably detailed submissions made to the Tribunal on the merits of the appeal on humanitarian grounds. Mr Pidgeon in fact relied on, and simply referred me to, the relevant pages in a bundle of documents which contained the written submissions of Mr Nand to the Tribunal. This is not an appropriate way to advance an argument on an application
for leave in this Court.
23 Helena Wray “An Ideal Husband? Marriages of Convenience. Moral Gate-Keeping and
Immigration to the UK” (2006) 8(3) VLR (P & M) at 303.
[57] The submissions now relied on addressed in some detail the various points advanced in support of the humanitarian appeal in respect of adverse effects on Mr Kumar, his present wife, his child, and other family members. These matters were fully assessed by the Tribunal. They required evaluation by a specialist Tribunal applying the legal test in s 107 as explained by the Supreme Court in
Ye v Minister of Immigration.24 There is no seriously arguable challenge to the
Tribunal’s interpretation of the applicable law. The Tribunal, having correctly directed itself on the law, then proceeded with the evaluation. It is this latter part of the exercise which Mr Kumar now seeks to challenge by appeal or judicial review. No seriously arguable error of law, or ground for judicial review, has been identified.
The innominate ground
[58] Mr Kumar’s draft statement of claim pleads a so-called “innominate” ground
for judicial review as follows:
The accumulated fact finding and assessment of expert evidence …, the fact that the charge [sic] was framed in relation to the work visa application only (s 158) when material provided including the letter of Ratish in relation to the residence permit was improperly taken into account and the failure of the second defendant to adequately consider the self-interest did acts [sic] of family in providing evidence in respect of the plaintiff who was a business competitor, gives rise to an error under the heading of the innominate ground.
[59] Discussion of legal principle was essentially confined to reference to short passages in two texts.25
[60] It is unnecessary to consider the scope of the innominate ground for judicial review. For present purposes it may be accepted that, although individual factors said to amount to some form of error warranting judicial review standing alone are not sufficiently arguable to meet the high hurdles created by s 249 of the Act, such factors assessed overall might nevertheless, as Tipping J suggested in one case, “give
the Court such unease about the decision-making process that in justice a
24 Above n 4.
25 GDS Taylor and R M Taylor Judicial Review: A New Zealand Perspective (3rd ed LexisNexis, Wellington, 2014) at [11.10]; Matthew Smith, The New Zealand Judicial Review Handbook (Brookers Limited, 2011) at [53.2.2] and [53.3].
reconsideration should be allowed.”26 This is not a case which comes close to the facts of the case before Tipping J. In another case Fisher J referred to “a clear case for intervention” where a number of discrete problems together showed that the proceedings “have gone seriously wrong”.27 The matters relied on by Mr Kumar do not bring his case to that threshold.
[61] The decision-making process in this case which requires consideration is the decision-making process of the Tribunal. It was a process in which the relevant statutory provisions and principles of law were correctly identified. There is no questions of procedural unfairness before the Tribunal, or indeed, in respect of the investigation by Immigration New Zealand. The applicant’s case comes back to a point referred to several times. The complaint is simply directed to the Tribunal’s assessment of the credibility of witnesses and of evidence, leading to findings of fact Mr Kumar seeks to challenge. The applicant does not point to any error which might arguably be open to challenge through judicial review. An innominate ground for judicial review is not capable of bona fide and serious argument. An accumulation of essentially untenable points cannot be converted into a single tenable point.
Result
[62] The applications under s 245 and s 249 of the Act are dismissed.
[63] The appellant is to pay the first respondent’s costs to be assessed on a 2B basis, together with usual disbursements. Any issue relating to the quantum of costs on a 2B basis, and as to the reasonableness of disbursements sought, is to be referred
to the Registrar for determination in the first instance.
Woodhouse J
26 Madlener v Lester HC Christchurch CP263/91, 31 July 1996 at 31 (per Tipping J).
27 Graham v Disputes Tribunal, New Plymouth [1997] NZAR 407, (1997) 10 PRNZ 547 (HC)
at 552.
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