Pal v Minister of Immigration
[2013] NZHC 2070
•16 August 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-007718 [2013] NZHC 2070
UNDER the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal
BETWEEN
JAG PAL JAG PAL First Applicant
GIAN KAUR GIAN KAUR Second Applicant
AND
THE MINISTER OF IMMIGRATION Respondent
CIV-2012-404-007720 UNDER
the Judicature Amendment Act 1972
IN THE MATTER
an application for judicial review
BETWEEN
JAG PAL JAG PAL First Plaintiff
GIAN KAUR GIAN KAUR Second Plaintiff
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Defendant
THE MINISTER OF IMMIGRATION Second Defendant
Hearing: 9-10 July 2013 Counsel:
FC Deliu for Applicants/Plaintiffs
DJ Perkins for Respondent/DefendantJudgment:
16 August 2013
JUDGMENT OF ASHER J
PAL v MINISTER OF IMMIGRATION [2013] NZHC 2070 [16 August 2013]
This judgment was delivered by me on Friday, 16 August 2013 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Table of Contents
Para No
Introduction [1] The statutory framework [6] The fraud issue [16] The evidence of fraud [22] Ms Kaur’s separate position [34] The wider fraud [40] Under s 158(1)(b) is actual fraud necessary? [45] The appeal on humanitarian grounds [55] The public interest [63] Judicial review [68] Conclusion [75] Result [78]
Introduction
[1] Jag Pal Jag Pal and Gian Kaur Gian Kaur are a married couple born in India in 1942 and 1944 respectively. They have six children. They lived in India until they came to New Zealand and settled here with two of their children. They did so on the basis of residence visas granted on 16 July 2004.
[2] On 10 August 2011, the Minister of Immigration ordered the applicants’ deportation under s 158(1)(b)(ii) of the Immigration Act 2009 (the Act) on the grounds that Mr Pal and Ms Kaur (the applicants) procured their resident class visas through fraud, forgery, false or misleading information or concealment of relevant information.
[3] The applicants appealed. On 22 November 2012, the Immigration and
Protection Tribunal (the Tribunal) dismissed their appeals.1
1 Re Jagpal [2012] NZPT 500544 [Jagpal].
[4] The applicants seek leave to appeal to this Court against that decision, submitting that the Tribunal erred in its application of the law and the processes that it followed. They have also filed judicial review proceedings that are to be determined together with the appeal.
[5] Before considering the applicants’ submissions, it is necessary to set out the relevant statutory framework.
The statutory framework
[6] Part 6 of the Act relates to liability for deportation. One of the grounds for deportation is where a visa or citizenship has been obtained or held by forgery or other listed matters. Section 158(1)(b) sets out what happens where the Minister determines that a visa was procured in this way. Under s 167, residence class visa holders remain liable for deportation for a period of 10 years.
[7] Part 7 of the Act relates to appeals, reviews and other proceedings including appeals from deportation orders. Section 201(1) gives the right to residents whose liability for deportation arises under s 158(1)(b) to appeal to the Immigration and Protection Tribunal, a tribunal established under s 217 of the Act to determine appeals against, amongst various decisions, liability for deportation.
[8] The Tribunal is a specialist body that has the role of deciding appeals by making findings of fact, applying the relevant law, and making a determination.2 In carrying out its role, the proceedings of the Tribunal in any particular case may be of an inquisitorial or adversarial nature, or both, as the Tribunal thinks fit.3
[9] Under s 202(c) the Tribunal must allow the appeal in certain circumstances:
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:
[10] The onus of showing that there should not be liability for deportation is therefore on the appellant. Section 203 provides that a person who is entitled and wishes to appeal both on the facts and on humanitarian grounds must lodge both appeals together. Section 207 sets out the grounds determining a humanitarian appeal. Section 207(1) provides:
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.
[11] Under ss 209–211 the Tribunal may make orders as are considered necessary in allowing any appeal, and may order the grant of a visa.
[12] Section 226(1) records that it is the responsibility of an appellant or affected person to establish his or her case or claim, and it is the appellant who must ensure that all information, evidence and submissions relied on in support of the appeal are provided to the Tribunal. The Tribunal must provide an oral hearing in the case of an
appeal against liability for deportation by a resident or permanent resident.4
[13] Under s 245, there is an ability to appeal to the High Court on a point of law by leave. Section 245(3) provides:
4 Section 233.
245 Appeal to High Court on point of law by leave
...
(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.
[14] So appeal is on a point of law only, and the Court must consider whether because of its general or public importance or other reasons, leave should be granted. On the appeal, the High Court must determine the question or questions of law in the proceedings and may then confirm the decision, remit the matter back to the
Tribunal, or make such other orders as it thinks fit.5
[15] Section 247 sets out the position where a person intends to both appeal against a decision of the Tribunal, and bring review proceedings in respect of the same decision. Unusually, the dual pathways of challenging a Tribunal decision are specifically recognised. The applications should be lodged together, and the High Court must endeavour to hear both matters together.6
The fraud issue
[16] It was central to the submissions of Mr Deliu, who represented the applicants, that there was an insufficient basis for the determination of the Minister and the Tribunal that the application forms for the applicants’ residence visas contained a fraudulent misstatement of fact. He asserted that there was “no mens rea”. In a related submission, he asserted that there had been a failure to focus on the position of Ms Kaur separately from Mr Pal, and that Ms Kaur could not be said to have known of the misstatement.
[17] These issues were relevant to both the appeal and judicial review challenges. Mr Deliu couched his submissions on the facts on the basis that the failure to properly determine the fraud issue was an error of law. In judicial review terms, he
argued on the basis that there was no evidence of fraud, and consequently the decision that there was fraud was unreasonable and irrational.
[18] While recognising that this is not a rehearing appeal and that a challenge to the facts can have only a limited role, I propose to deal with this factual issue of fraud first as it lies at the heart of much of the applicants’ submissions. Because the factual issue under s 202 was not considered by the Tribunal because of the concession it had received, I will deal with the factual issues in detail.
[19] Under s 202(c)(ii), the Tribunal had to allow the appeal against liability for deportation on the facts if it was satisfied on the balance of probabilities that the resident visa or permanent resident visa had not been granted to the applicants on the basis of a fraud, forgery, false or misleading representation, or concealment of relevant information.
[20] It has throughout been common ground that the applicants would not have been granted residence if they had correctly disclosed the details of their six children. As I understand it, this is because as a result of their having four other children in India and other countries, the applicants would not have been considered to have their central family focus in New Zealand.
[21] In the Tribunal hearing, the applicants are recorded as having conceded the appeal on the facts. It followed from that concession that the principal issue in the appeal was whether the applicants had displayed exceptional circumstances of a humanitarian nature, arising from their age and their family arrangements in New Zealand, to the extent that it would be unjust or unduly harsh for them to be deported to India. However, in the course of the Tribunal’s decision, it considered whether there was knowledge of the false statement as to the number of children on the part of the applicants, as a factor relevant to the exercise of the humanitarian circumstances discretion. The applicants argued before the Tribunal that they did not knowingly commit fraud or knowingly conceal relevant information. Mr Deliu in this Court actively pursued that submission and appeared to step back from any earlier concession made by his predecessor.
The evidence of fraud
[22] Mr Pal and Ms Kaur each signed two documents containing the statement that they had two children. Their application for residence was a single document showing Mr Pal as the principal applicant and Ms Kaur as the spouse or de facto partner. It also showed their son Ashok Kumar Bali as an applicant. Their daughter Darshana Bali was already resident in New Zealand having obtained a residence visa in 1997. Although it was an application in which Mr Pal was the principal applicant, it provided for him Ms Kaur and their son to sign. Mr Pal signed while Ms Kaur affixed a fingerprint.
[23] Both their signed applications for residence and their medical certificates showed that they had no more than two children. Ashok was shown on the application and Darshana was already in New Zealand and this was referred to. No other children were shown in the place on the form where they were to be listed. Their declarations, which they each individually signed, contained these words:
Iunderstand that if I make any false statements, or provide any false or misleading information, or have changed or altered this form in any way, my application may be declined or my residents visa or permit may later be revoked, and that I may also be committing an offence and liable to prosecution.
Iunderstand the notes and questions in this form and I declare the information given about myself, my spouse/partner and any children is true and complete.
Ideclare that I have listed all my family members … and understand that the non-declaration of any family members may result in that family member not being recognised as part of my family in future applications.
[24] Mr Pal and their child Ashok signed the declaration personally. Ms Kaur placed her inked-stained finger on the place of signature.
[25] The doctor was a medical practitioner approved by the New Zealand Immigration Service. She filled in the form. Where Mr Pal signed and Ms Kaur affixed her fingerprint, the declaration read:
I declare that the details given by me to the medical examiner and set out in section A and B of the certificate are true and correct in every respect.
The medical practitioner recorded:
I am satisfied that the particulars given to me by the applicant/applicant’s parent or guardian are correct.
The certificate was signed by the applicant in my presence.
[26] The medical report had a section setting out the number of children born to the applicant. It had a heading “number of children alive”. In respect of both of them the number of children was shown as “two”. Under the heading “number of children deceased” nil was shown, and under the further heading “total children born”, two children were shown. They had six children.
[27] The applicants provided sworn explanations for the incorrect advice as to the number of their children. They asserted that they relied upon an agent who had completed the application forms for them. They stated that they told the agent they had six children. The agent was introduced to them by a relative who was also fully aware of how many children they had. They asserted that the disclosure of only two of their children was the fault of the agent and that they, being illiterate, knew nothing of the error at the time. They assumed that he had recorded the six children.
[28] The explanation as to the doctor completing the form on the basis that they had six children was initially that the doctor did not speak to the agent. Later Mr Pal claimed that he was unaware of whether the agent had spoken to the doctor or not. He said that he and Ms Kaur and their son Ashok Bali had been left in the waiting room, and that the family members had then been called in with the agent present or nearby and asked questions. They were then individually taken in and questioned and examined by the doctor alone. Mr Pal insisted that although the doctor had asked questions about his brothers and sisters, he did not ask how many children he had.
[29] Their son, Ashok Bali, in contrast asserted that when they went to the doctor, she had asked the questions of them although the agent had answered the questions. The family had understood the answers being given. Before the Tribunal, Ashok Bali was asked whether the agent had told the doctor the correct number of children, to which he replied that when the agent was giving the doctor that information they
had all been sent off to do other tests. He subsequently said that the agent had attended the doctor with them on two occasions and had filled out the forms while they were there.
[30]
why n
The ot. T
(a)
Tribunal did not accept the applicants’ explanations. It is easy to see
he following matters stand out:
The applicants have both signed documents (the residence
application) which contain false information. They did so in the face
of an express warning in the form of declaration that if there is any
false or misleading information in their statements, amongst other things, their residence visa or permit may later be revoked. (b)
As to the medical certificates, it is highly unlikely that a doctor, approved by the New Zealand Immigration Service, would wilfully
put in false information or put in information about persons he was
seeing unless that information came from those persons. It seems
unlikely that the doctor would have either failed to ask about the
number of children, or got the answer wrong when he or she
transcribed it. (c)
There is no reason to reject Ms Kaur’s claim that she was illiterate
(although Mr Pal’s similar claim must be regarded with some
scepticism, given that he was working in India as an electrician, and
signed his application with a firm hand). However, even accepting
their illiteracy, any responsible person in signing an application
concerning such an important matter as a residence application, where
there are clearly a large number of issues covered by the forms, would
have sought a translation of those pages. If no translation or reading
out of those provisions was sought, any person who did not make such
attempts could only be seen as reckless or wilfully negligent. (d)
There is no credible explanation put forward by Mr Pal or Ms Kaur as
to how it came about that these documents which they signed did not
mean what they said. Importantly, there is no acknowledgement of error by the doctor or any other third party. The applicants did not call third party evidence on the point.
[31] Looking at all these matters afresh, on the balance of probabilities, fraud on the part of both of the applicants was established. No credible alternative explanation was provided.
[32] If there is a misleading statement, and an appellant wishes to show that they were not knowingly misleading, then it is clear from s 226(1) that it is up to the appellant to call evidence or provide material to show that the inference that can logically be drawn (that is that the misstatement was deliberate) could not be drawn. The only evidence provided by the applicants was their own testimony. It was contradictory and lacking in detail. It was uncorroborated save between themselves and their son Ashok.
[33] In all the circumstances, this analysis leaves me in no doubt that the Tribunal was correct when it concluded that both the applicants knowingly committed the fraud by providing incorrect information about their children.
Ms Kaur’s separate position
[34] Mr Deliu submitted that the Tribunal erred by committing a “mistake of fact” in not considering Ms Kaur’s position separately from Mr Pal. Ms Kaur says her application was dependent upon what her husband did and any fraud on his part cannot be attributed to her.
[35] This is not a tenable submission on the facts. Ms Kaur signed the documents with her fingerprint. She was either reckless or negligent, as she could have had the documents read to her. If they were read to her, she would have been aware of the error. The fact that Ms Kaur could be seen as a derivative applicant in relation to the application in the sense of Mr Pal being the principal party in filling out the application, does not in any way as a matter of practical fact excuse her from the necessity to understand and honestly sign all relevant documents. Ms Kaur had the
same responsibility as her husband to ensure that the information provided was accurate. The medical certificate which she signed related to her alone.
[36] Therefore, the fact that the forms used to collect the information referred to “principal applicant’s” spouse and “dependent children” is a matter of administrative convenience, and does not in any way excuse Ms Kaur from the truthfulness of her declaration. It must be noted that the doctor who provided the medical certificate, Dr Chopra, declared that she was satisfied that the particulars given to her by Ms Kaur (which included the number of children) were correct.
[37] While the Tribunal did not deal with Ms Kaur’s credibility directly , it is clear from its conclusions that it did not accept her assertions that she did not know of the deceit. It had a proper basis to do so. Looking at the matter objectively, I do not accept Mr Deliu’s argument that Ms Kaur’s culpability was minimal, or far less than that of her husband. There is simply no basis for saying that. It would be different if she had provided credible evidence as to how she had been tricked by her husband. However, she made no such suggestion. Even if she had provided that information, there would be further issues that would arise as to how far her culpability could be seen as diminished.
[38] Thus, I reject the submission that the Tribunal was in error in failing to distinguish between Mr Pal and Ms Kaur. The Tribunal understandably tended to put the two together, as they signed at the same time and appeared to be working closely together, and were jointly represented. The submissions before the Tribunal appear to have related to them both. However, when their positions are regarded entirely separately, Ms Kaur has not shown on the balance of probabilities that she did not know of the omission. She was unable to provide any credible explanation as to how she came to attach her fingerprint to documents that contained such a fundamentally false statement as to the critical issue of her number of children, and it can be seen why the Tribunal did not accept that evidence.
[39] The Tribunal found that both of the applicants were “architects” and “willing conspirators” in the fraud.7 The Tribunal was entitled to rely on the application and
the immigration doctor’s declaration that she was satisfied that the particulars as given to her by Ms Kaur as to her number of children were correct.
The wider fraud
[40] The Tribunal went on to observe that there appeared to have been a degree of long term planning going back to an earlier application for residence made by the applicants’ daughter Ms Bali, as that application contained a similar misstatement as to her number of siblings. The Tribunal concluded there was a long term intention on the part of the parents with their daughter to obtain residence in New Zealand, and to do so by not disclosing the existence of four of the six children.
[41] Mr Deliu observes with some force that this proposition was never put to the applicants or their witnesses. However, putting the daughter’s earlier application to one side, and any idea of a long term plan, the fact remains that there is no satisfactory explanation provided by the applicants for their false statements. On any objective analysis of the evidence before the Tribunal, deliberate concealment of four of the six children was established on the balance of probabilities.
[42] I do not consider that the “wider fraud” factor was critical to the Tribunal’s
reasoning. It began its consideration of this point by stating: “If more were needed
…”.8 I accept it was a matter that should have been left aside, given that the applicants had not had an opportunity to answer the allegation. However, I do not consider it critical in the Tribunal’s reasoning and in any event I consider its finding of fraud to be on the facts the correct conclusion.
[43] I conclude that there was no material error on the part of the Tribunal in its assessment of the culpability of Mr Pal and Ms Kaur in relation to the false and misleading statements. On my own objective analysis of the material, those statements were not shown to be other than deliberately false. There is no other credible explanation.
[44] Further, the false or misleading representations do not need to be knowing. They can be entirely innocent. I now set out the reasons for this conclusion.
Under s 158(1)(b) is actual fraud necessary?
[45] Mr Deliu submitted that the Tribunal erred as a matter of law, “… presupposing without a ‘scintilla of analysis’ that Rajan v Minister of Immigration HC Auckland M1151/94, 31 July 1995 is the only, or indeed correct, law in New Zealand”. The proposition in Rajan v Minister of Immigration that he was attacking was that, as I understand it, there is no mens rea requirement of actual fraud before it can be determined that a person’s residence was wrongly procured under
s 158(1)(b).9
[46] Rajan is one of a considerable line of cases which stand for the proposition that there is no subjective element required. Earlier than Rajan, Greig J stated in Zheng Ching Man v Attorney General:10
It would be absurd that such a person should be entitled to a residence permit founded upon a forged and invalid resident visa or any other document merely because they were able to say that they did not know that the document was false.
[47] Greig J quoted Australian authorities supportive of that proposition. In Chae Lai Heng v Minister of Internal Affairs with reference to the Citizenship Act 1977, Salmon J stated:11
As a matter of policy it would in my view be quite wrong for a person to be able to claim citizenship on the basis of fraudulent documents just because that person had been innocent of fraud. As was said by Greig J the essence of the grant of a residence permit and the authority to remain in New Zealand is that the person concerned has been vetted and approved by the Immigration Service. It is perfectly clear on the evidence that that has not happened in the case of the plaintiff.
…
If citizenship were able to be obtained by an innocent person on the basis of documents which were fraudulent the policy of the Immigration Act [1987] and the Citizenship Act which is to ensure that both immigration and citizenship are carefully regulated would be defeated. … It is also significant
9 Rajan v Minister of Immigration HC Auckland M1151/94, 31 July 1995.
10 Zheng Ching Man v Attorney General HC Wellington AP 39/90, 14 May 1993 at 8.
11 Chao Lai Heng v Minister of Internal Affairs HC Auckland M616/95, 24 April 1996 at 12–13.
that there is nothing in [s 17(2) of the Citizenship Act 1977] which would indicate that the fraud, false representation or wilful concealment must be that of the person obtaining the citizenship. Had that been the intention of the legislature it would have been very easy to have worded the subsection in that way.
[48] In Rajan, Tompkins J stated:12
… there is nothing in the New Zealand section to indicate that guilty knowledge is required to be established before the Minister can exercise his power to revoke the permit. There is no subjective element involved.
[49] Similarly in Ansell v Minister of Immigration Doogue J stated:13
The cases make it clear that it would be absurd that a person should be entitled to rely upon a residence permit founded on a fraudulent basis merely because the person was able to say he or she did not know that the document was false.
[50] This line of authority is, with respect, clearly correct. It is generally the case that the exact circumstances of the completion of an application for a residence visa are known only to the applicant. Such applications would often occur within the context of a family situation where a senior member of the family would take over the running of a fraudulent application, and the others will follow. For this reason, no doubt, the legislature has chosen the wording in s 158(1)(b) which precludes the mental element of knowing misrepresentation. It would be most surprising for Parliament to leave the section in a near identical form in the Immigration Act 2009 if it considered the interpretation given in 1993 was wrong.
[51] Included in the matters to be determined are whether there was a “false or misleading representation”. On these plain words there is no requirement for knowledge of the misrepresentation. There is a long line of authority relating to the phrase “misleading and deceptive conduct” in the Fair Trading Act context which makes it clear that there is no requirement on the part of the representor of
knowledge of the fraud.14
12 Rajan, above n 9, at 11.
13 Ansell v Minister of Immigration [2001] NZAR 999 (HC) at [42].
14 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978)
140 CLR 216; Neumegen v Neumegen & Co [1998] 3 NZLR 310 (CA), cited by the Supreme
Court with approval in Red Eagle Corp v Ellis [2010] NZSC 20, [2010] 2 NZLR 492.
[52] Thus, the plain words and the policy considerations set out in the authorities cited are quite clear on this point.
[53] Mr Deliu relied on some decisions that he claimed stood for a contrary proposition, in particular Prasad v Minister of Immigration where relative culpability was assessed.15 However, Prasad was not in the context of s 158, but rather in the context of the consideration of an appeal on humanitarian grounds. Another case, R v Yan, related to the procuring of New Zealand citizenship where there was a specific requirement of knowledge of the falsity.16
[54] Thus, even if I had not dismissed Mr Deliu’s criticism of the finding of knowing omission, I would have upheld the Tribunal’s factual finding relating to the residence visa under s 202(c).
The appeal on humanitarian grounds
[55] Mr Deliu argued that the Tribunal wrongly exercised its powers under this section on the assumption that the appeal on the facts was conceded, when the Tribunal was under a positive obligation to reach its own views, which it failed to do. However, I am satisfied that the Tribunal did consider the humanitarian circumstances aspect of the appeal on its merits. Indeed, it devoted some 23 paragraphs to this issue, considering it afresh. In doing so I am satisfied that the Tribunal approached the exercise from the right perspective. The Tribunal rightly did not use the language of onus, but approached the humanitarian grounds issue on
the basis that it had an open-textured discretion.17
[56] Mr Deliu argued that the Tribunal wrongly failed to consider disjunctively the unjust or unduly harsh test. He submitted that there may be some degree of harshness in removing an overstayer, but it must be undue.
[57] The juxtaposition of the words “unjust” and “unduly harsh” separated by the
word “or” creates a difficulty in the sense that the word “or” would indicate a
15 Prasad v Minister of Immigration HC Wellington CIV-2008-485-967, 1 October 2008.
16 R v Yan [2012] NZHC 1205.
17 See Minister of Immigration v Al Hosan [2008] NZCA 462 at [44]–[51].
disjunctive separation between the two concepts. However, they are as a matter of fact and application difficult to distinguish. This was recognised in Esau v Minister of Immigration where it was observed:18
I think the expression “unjust or unduly harsh” is best regarded in a composite way. A deportation which is “unjust” is also likely to be regarded as “unduly harsh” and vice versa. No doubt, “unjust” has shades of meaning which differ from those of “unduly harsh”. But it seems to me to be unreal to expect those administering this Act to approach the phrase as requiring discrete inquiries, first whether the order is unjust and, secondly, if it is not “unjust” whether the order can be regarded as being “unduly harsh”.
[58] This approach has been adopted in other cases.19 It was criticised by Doogue J in Ansell v Minister of Immigration where it was suggested that the words could not be approached in a composite way.20 However, he noted that it is sufficient if the assessment has been made disjunctively and the Tribunal has objectively considered whether deportation would be unjust or unduly harsh.21
[59] Young J’s decision appears to be consistent with the earlier Court of Appeal authority of Patel v Removal Review Authority where it was stated that the test was a “composite test and the whole picture is to be viewed, both circumstances and effect”.22 Given the fineness of the distinction between the word “unjust” and the words “unduly harsh” there is in my view no other workable approach. It is artificial and unhelpful to a coherent process of evaluation to try to deal disjunctively with
criteria that cannot be distinguished in any practical way. A deportation that is unjust is likely to be unduly harsh, and vice versa. A more nuanced analysis of each concept is likely to produce a strained result. Insofar as the Tribunal did not attempt to distinguish in a formal way between the two concepts, I do not think it was an error.
[60] The Tribunal acknowledged that there were exceptional circumstances of a humanitarian nature. It considered the personal circumstances of the applicants in
detail. They will be returned to India against their wishes after an 11 year absence,
18 Esau (sub nom Manutai) v Minister of Immigration HC Wellington AP320/98, 5 October 2000.
19 See Faatafa v Minister of Immigration HC Christchurch CIV-2005-409-1494, 17 October 2005 at [50].
20 Ansell v Minister of Immigration, above n 13, at [23].
21 At [23].
22 Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204.
which can be seen as a considerable hardship. Deportation must be unjust, and not just harsh but unduly harsh. The assessment includes consideration of the acts that have led to deportation. It was in this part of the judgment that the Tribunal considered in detail the evidence of fraud on the part of the applicants.
[61] For the reasons I have already set out, I consider the Tribunal’s conclusion that the applications were misleading and deliberately so, was unavoidable. The Tribunal considered the personal circumstances of the applicants in detail in the knowledge that they would be upset and distressed at having to leave adult children behind in New Zealand and return to India. However, the Tribunal determined that this did not amount to something that was unjust or unduly harsh, and it clearly had a sound basis for doing so. Claims of severe consequence to health and life were not supported by satisfactory evidence. There was no error of law.
[62] There can always be a degree of sympathy for otherwise law abiding persons such as the applicants whose wish is to live in New Zealand with some of their family. However, they have been party to misleading deliberately the New Zealand immigration authorities. The integrity of the application process turns on the scrupulously honest and careful completion of forms. Applicants must realise that the consequence of failing to be honest and open in the application process is severe. Only then will the immigration system continue to work. If sympathy for the individual became the dominating concern it can be foreseen that the present application system would break down entirely.
The public interest
[63] Mr Deliu also submitted the Tribunal erroneously balanced adverse versus positive public interests, when in fact it was required to decide whether it was not in all the circumstances contrary to the public interest to allow the applicants to remain in New Zealand without balancing. He submitted also that a balancing exercise is not prescribed by the Act. He argued that the Tribunal embraced a wrong starting point in denouncing the fraud, whereas, in his submission, the system permits even immigration fraudsters to be able to rely on the public interest. He complained that the decision was based on superficial and conclusory reasoning.
[64] The Tribunal commenced its analysis by asserting that the starting point was “… the denunciation of fraud, and the maintenance and integrity of, New Zealand’s immigration system”.23 These considerations were stated to be critical. The Tribunal went on to weigh the adverse public interest considerations, being the damage to the integrity of the system against the positive public interest considerations of preserving the applicants’ continued residence in New Zealand with part of their family.
[65] I do not consider that this approach can be criticised. The applicants’ false application was the whole reason for the challenge to the applications and the deportation. It could not be ignored or put to one side. It was a critical factor for the reasons I have already set out.
[66] It was entirely appropriate for the Tribunal to weigh that factor against factors supportive of the applicants remaining in New Zealand. The public interest cannot be evaluated by considering only one matter, or various matters seriatim. Indeed, the section itself indicates that there must be a weighing, in using the phrase “… not in all the circumstances be contrary to the public interest”. Various circumstances can only be evaluated in relation to a test (contrary to the public interest) if they are
compared to each other and weighed.24 That is what the Tribunal did. If the
Tribunal had considered that the applicants had been innocent of any wrongdoing, the result of the weighing process may have been different.
[67] The Tribunal’s reasoning process is undoubtedly more than conclusory, containing a detailed consideration of the relevant circumstances, and factual findings. The Tribunal determined that it was not in the circumstances contrary to the public interest to dismiss the appeal, and it explained why it reached that
conclusion.
23 Jagpal, above n 1, at [130].
24 See also Garate v Chief Executive of Department of Labour HC Auckland CIV-2004-485-102,
30 November 2004 at [41]; and Helu v Immigration and Protection Tribunal [2012] NZHC
1270, [2012] NZAR 688 at [45] and [47].
Judicial review
[68] Many of the arguments raised by Mr Deliu have already been covered. He suggested that there was no evidence supporting the finding of fraud. That is a matter already traversed. It was submitted that there was no evidence of a long term plan. For reasons I have set out, that issue can be isolated.
[69] Mr Deliu argued the case for Ms Kaur on the basis of agent and principal, suggesting that the errors were the fault of the agent and there was no evidence that this agent was instructed by Ms Kaur to carry out a fraud. This submission ignores the fact that Ms Kaur signed the application albeit with a fingerprint, and also signed the declaration that she had given the correct details to the doctor. She did not provide any independent evidence setting out where and how she was duped by some third party into so fixing her fingerprint.
[70] Mr Deliu based his submissions on the assumption that someone who was illiterate cannot be held to be responsible for a document that has been signed by that person. However, that person should not take any steps to sign anything with writing on it if that writing has not been translated and explained. There could be circumstances of course where they were tricked or defrauded, but Ms Kaur has not set out in any convincing detail how that may have happened.
[71] There was ample evidence before the Tribunal for it to conclude irrespective of that earlier evidence, that there was deliberate fraud. There is no convincing evidence that Ms Kaur legitimately and in good faith handed the application process over to an agent. It seems most likely that she was prepared to go along with and repeat her husband’s false statement about the number of their children. This appears to have been the conclusion of the Tribunal which, although not dealing with Ms Kaur’s mental state independently of Mr Jag Pal, can be inferred as finding her to be equally culpable.
[72] Mr Deliu suggested that the daughter’s residence application and parents’ medical certificates were never in evidence before the Tribunal. There has been an affidavit filed on that topic. There was no complaint about the lack of originals before the Tribunal at the time of the hearing and I am satisfied that the Tribunal had
either originals or extracts of the relevant sections of those originals when it made its decision. The Act makes it clear that it is for the resident to provide information in order to make out the case that person seeks to put forward, and provide the necessary evidence. Mr Deliu cannot complain about a lack of material before the Tribunal, when the applicants failed to provide any corroboration for their claims of innocence.
[73] Most of the judicial review submissions were just a reformulation of the appeal submissions, put in administrative law terms. For the reasons that I have set out, I do not consider that the decision of the Tribunal was one that no reasonable decision-maker could have reached.25 For reasons that I have set out the decision was entirely open to the Tribunal and indeed perfectly reasonable. Further, there were no errors of law.
[74] Mr Deliu invoked the rule of law and claimed misuse of public power. I am quite unable to see any way in which these principles can be invoked given the careful consideration of the Tribunal, which was in accord with the duties imposed upon it by the Act.
Conclusion
[75] The applicants deserve sympathy. It will be at the very least very difficult for them to leave New Zealand and two of their children having made a life here and return to India after a lengthy absence. Mr Deliu has put forward every argument that could be put forward in support of the appeal and judicial review.
[76] However, there was in the end no procedural unfairness. The positions of the applicants respectively were correctly heard together. This was how the matter had been argued before the Tribunal, and it was fair for the Tribunal to consider them both together given that they had both signed false documents and both failed in a
satisfactory way to explain how that had come about. They were operating together.
25 Associated Provincial Picturehouses Ltd v Wednesbury Corporation [1948] 1 KB 233 (CA).
[77] The real problem that Mr Deliu faced that lay at the heart of the whole appeal was that on the facts the case of wilful omission in relation to the number of the applicants’ children was very strong, and the conclusion on the factual issues reached by the Tribunal not possible to accurately criticise. There was no error of law on the part of the Tribunal. There is nothing illegal or ultra vires in its actions. There was no procedural unfairness. In the end the decision was entirely open to the Tribunal, and indeed on the face of the evidence the only available conclusion that could have been reached.
Result
[78] The application for leave to appeal is allowed and leave is granted.
[79] The appeal and the judicial review proceedings are dismissed. The decision of the Tribunal is confirmed.
[80] Costs are reserved. If the respondent seeks costs submissions should be filed within 14 days with the applicants having a further 14 days to reply.
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Asher J
Solicitors/Counsel: FC Deliu, Auckland. Crown Law, Wellington.
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