Panchal v Immigration and Protection Tribunal
[2018] NZCA 83
•10 April 2018 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA544/2017 [2018] NZCA 83 |
| BETWEEN | MAHESHKUMAR BAHECHARLAL PANCHAL |
| AND | IMMIGRATION AND PROTECTION TRIBUNAL |
| AND | MINISTER OF IMMIGRATION |
| Hearing: | 19 March 2018 |
Court: | Kós P, Brown and Williams JJ |
Counsel: | D Zhang for Applicant |
Judgment: | 10 April 2018 at 2.30 pm |
JUDGMENT OF THE COURT
AThe applications for leave to appeal to the High Court and to bring judicial review proceedings in the High Court are dismissed.
BThe respondent will be entitled to costs on a 2A basis together with the usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
The Minister of Immigration issued a notice for the deportation of Mr Panchal. The Minister determined that fraudulent information had been provided by Mr Panchal’s employment supervisor in relation to Mr Panchal’s application for a residence visa. On appeal to the Immigration and Protection Tribunal (the IPT) the deportation notice was upheld.[1] In the High Court Woodhouse J declined leave to bring a second appeal to that Court on a question of law and also declined leave to bring proceedings in judicial review.[2] In accordance with the special procedure in the Immigration Act 2009 (the Act), Mr Panchal now seeks the leave of this Court to bring the proposed High Court proceedings.[3]
Leave to appeal and bring judicial review proceedings
[1]Panchal v Minister of Immigration [2017] NZIPT 600334 [IPT decision].
[2]Panchal v Minister of Immigration [2017] NZHC 2080 [High Court decision].
[3]Sections 245(1) and 249(3).
Section 245(3) of the Act provides the controlling standard for applications for leave to appeal on a question of law. Both the High Court and this Court on appeal must have regard to whether any question of law posed 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 consideration. Section 249 covers applications for leave to bring judicial review proceedings. Section 249(6) provides the test to be applied by the High Court and this Court on an application for leave. Regard must be had first to whether the issues involved “could not be adequately dealt with in an appeal against the final determination” of the IPT.[4] If the answer to that question is they could not, then, as a second filter, the same test as that applicable under s 245(3) must also be applied.[5]
[4]Section 249(6)(a).
[5]Section 249(6)(b).
In Taafi v Minister of Immigration the High Court interpreted “any other reason” to require “exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.[6] This Court affirmed that threshold in Machida v Chief Executive of Immigration New Zealand.[7] Palmer J in RM v Immigration and Protection Tribunal and in AI (Somalia) v Immigration and Protection Tribunal and Heath J in Hu v Immigration and Protection Tribunal have doubted this interpretation and favoured a less stringent test.[8] In Kumar v Minister of Immigration this Court acknowledged these developments but considered resolution of any disagreement was not required in that case.[9]
[6]Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
[7]Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
[8]RM v Immigration and Protection Tribunal [2016] NZHC 735 at [35]–[37]; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [32]; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]–[19].
[9]Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 at [7].
For the reasons that follow, we are of the view that this is also a case where issues of interpretation of ss 245(3) and 249(6)(b) do not require resolution. Whatever the applicable leave test, we have concluded that Mr Panchal cannot satisfy it.
Background facts
Mr Panchal is an Indian national who arrived in New Zealand in February 2009 on a student visa. He obtained a national diploma in business from a New Zealand tertiary institute. He is now 35 years old, married and has one child.[10]
[10]The child was born between the Tribunal and High Court decisions.
In September 2010 Mr Panchal began work as a cleaner for a company in Auckland, and in November of that year he was granted a work visa by which time he described himself as an “Onsite Representative” of that company. He was apparently given extra responsibilities at the site by D who was a company account manager with the cleaning company and Mr Panchal’s immediate supervisor. The extra responsibilities were akin to what one would expect of a “leading hand”.
In January 2013 Mr Panchal was granted a further work visa, this time on the basis that he had been promoted to the position of “Key Account Contract Administrator”. The background to this is as follows. In a written contract of employment purportedly signed a month earlier by Mr Panchal and D (on behalf of the company) it appeared that the cleaning company had agreed to promote Mr Panchal to such Key Account Contract Administrator. He would be paid a salary of $35,600 and would be given the use of a mobile phone and a company vehicle. This agreement was false. In fact Mr Panchal continued to be employed by the cleaning company beginning at the minimum wage of $13.10 per hour rising to $14.10 per hour by the time Mr Panchal left the employment of that company to take up other work. There was no car and no mobile phone.
On 4 February 2013 Mr Panchal then applied for a residence visa under the Skilled Migrant category. He used his apparent new position as Key Account Contract Administrator to justify this enhancement of his immigration status. He claimed that his new position substantially matched the description of a Contract Administrator in the Australia and New Zealand Standard Classification of Occupations. The application was approved by Immigration New Zealand on 18 July 2013.
In November 2013 Immigration New Zealand discovered that D had in fact fabricated the employment details of Mr Panchal. The position of Key Account Contract Administrator did not exist and D had no authority from his employer to change Mr Panchal’s original terms of employment.
It is common ground that D perpetrated this fraud without the cleaning company’s knowledge. According to the IPT, he was charged with providing false and misleading information to Immigration New Zealand and pleaded guilty. He was discharged without conviction. When Immigration New Zealand communicated with Mr Panchal about the offending he too denied any knowledge of it. He said he had trusted D and genuinely believed he was employed by the company on the basis set out in the December 2012 “contract”.
The Minister of Immigration served a deportation liability notice on Mr Panchal in June 2016.
Relevant statutory provisions
Before the IPT and the High Court, Mr Panchal mounted a series of arguments that boiled down to two propositions:
(a)he was an innocent victim of D’s fraud; and
(b)his family, wider circumstances and his innocence of fraud warranted cancellation of the deportation notice on humanitarian grounds.
In the High Court Mr Panchal posed questions of law that reflected those propositions while seeking separate leave to argue a procedural fairness point by way of judicial review. We set these out in detail below.
In relation to the absence of culpability argument the relevant provisions are ss 158(1)(b)(ii) and (1A) of the Act:
158 Deportation liability of residence class visa holder due to fraud, forgery, etc
(1) A residence class visa holder is liable for deportation if—
...
(b) the Minister determines that—
…
(ii)any of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, or any relevant information was concealed.
(1A) Subsection (1) applies—
(a) whether or not the person holding the residence class visa is the person who—
(i) provided the information that is established or determined to be fraudulent, forged, false, or misleading; or
(ii)concealed the relevant information that is established or determined to have been concealed; and
(b) whether the visa was granted before or after this subsection came into force.
Section 202 is a mirror provision that applies in relation to appeals before the IPT. It provides:
202 Grounds for determining appeal on facts
…
(ca) in the case of an appellant liable for deportation under section 158(1)(b)(ii), the Tribunal is satisfied, on the balance of probabilities, that none of the information provided in relation to the person’s, or any other person’s, application, or purported application, for a visa on the basis of which the residence class visa was granted was fraudulent, forged, false, or misleading, and no relevant information was concealed:
In these provisions it is for the IPT to be satisfied, to the civil standard, of the following negative propositions:
(a)that there is no fraudulent, forged, false or misleading information in the application; and
(b)that no relevant information was concealed.
On the second argument in relation to humanitarian grounds, s 207 is the relevant provision:
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.
There are three elements in paragraph (a) and a public interest component in (b). This provision has been the subject of thorough analysis by the Supreme Court.[11] We will address that analysis below.
IPT and High Court decisions
[11]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
The IPT found that Mr Panchal had not established on the balance of probabilities that none of the information provided in relation to his residence application was fraudulent, nor had he established that no relevant information was concealed.
The IPT applied the leading High Court decisions of Rajan v Minister of Education and Pal v Minister of Immigration on the meaning of s 202(ca).[12] Among other things these cases establish that the relevant fraud or concealment need not be that of the proposed deportee. As long as the deportee benefits from the fraud or concealment, his or her state of mind is irrelevant. Notwithstanding this no fault test, the IPT found that there was circumstantial evidence from which to infer that Mr Panchal “knew or ought reasonably to have known” that the offer of the new position was not genuine. This was for two reasons. When Mr Panchal applied under the Skilled Migrant category he did not disclose that he had commenced his employment with the company as a minimum wage cleaner. Disclosure would undoubtedly have raised suspicion in the minds of immigration officials. Second, when he had applied for a $20,000 loan (to fund his wife’s study) he did not disclose he was liable for deportation. The Tribunal concluded:[13]
[70] The above are examples where the appellant has concealed relevant information in situations where he was required to be scrupulously honest about his personal circumstances. While there is no direct evidence that he colluded with [D] to commit immigration fraud or was reckless as to the truth, there is a clear pattern of behaviour on the appellant’s part to withhold relevant information, which is a form of fraudulent behaviour. The Tribunal rejects the appellant’s assertion that he is the innocent victim of an account manager acting on his own.
[12]Rajan v Minister of Education HC Auckland, M1151/94, 31 July 1995; and Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240.
[13]IPT decision, above n 1.
In the High Court Woodhouse J applied the same decisions as the IPT. He considered that they were rightly decided and were even more apt now in light of 2015 amendments to the legislation. Mr Panchal’s alleged ignorance of the fraud was not relevant under s 202(ca). On the humanitarian grounds-based questions, Woodhouse J rejected the argument that it was incumbent on the IPT to consider all three elements of the s 207(1)(a) test. Nor did the Judge accept that absence of fraud on Mr Panchal’s part (if true) was a humanitarian factor which ought to have been taken into account. Further the Judge rejected the proposition that the IPT had failed to take into account wider positive factors in relation to Mr Panchal that would have made him “an asset for New Zealand”. Finally, the Judge addressed an argument in relation to the interests of Mr and Mrs Panchal’s (then) unborn child. This was a factor the IPT considered and rejected for lack of evidence that a return to India would have compromised the health of Mrs Panchal or her (then) unborn child.[14] The Judge considered that the child would not be significantly affected in light of Mrs Panchal’s evidence that if Mr Panchal were deported she would follow him. The family would remain intact. Woodhouse J thus concluded that none of the questions of law advanced by Mr Panchal were capable of bona fide or serious argument. As to the application for leave to bring judicial review proceedings, Woodhouse J considered there was no proper basis for a claim in breach of natural justice. The questions put by the IPT to Mr Panchal related to arguments he had advanced in submissions and evidence about his innocence of fraud and the quality of his character. He could not be said to have been unfairly taken by surprise.
[14]IPT decision, above n 1, at [78].
Both applications for leave were dismissed accordingly.
Analysis
Before this Court, Mr Panchal posed the same questions as those in the High Court and advanced the same arguments. He also mounted the same procedural fairness argument. For reasons largely similar to those adopted by Woodhouse J, we also consider both applications for leave must be dismissed.
Was the IPT wrong to disregard Mr Panchal’s lack of culpability?
On the issue of whether Mr Panchal’s alleged innocence ought to have been treated by the IPT as relevant, even decisive, we think it important to emphasise that the IPT did not agree with Mr Panchal’s starting premise. For the reasons we have summarised above, the IPT inferred that he was not entirely innocent at all.
We agree that there was good evidence to support the view that Mr Panchal must have been aware of D’s fraud. In addition to the two factors identified by the IPT there are also other matters. Mr Panchal has a New Zealand Diploma in business as well as bachelor’s degrees from India in science and education and a master’s degree in science. He is not an unsophisticated man. With that background in mind, he signed a document that would have seen his income rise to $35,600 per annum irrespective of hours worked.[15] He would also have received significant ancillary benefits — a phone and a car. It is not credible to suggest that a man of Mr Panchal’s education and sophistication did not understand the nature of the promises in this “contract”, and their ulterior immigration purpose. He would certainly have understood after the “contract” was signed in December 2012 that he was not receiving the advantages promised; but there was no evidence of him making enquiries with D or anyone else in that regard. It is unsurprising that the IPT came to the view that Mr Panchal was essentially in on D’s scheme.
[15]By contrast, at his highest hourly rate he would have earned around $29,300 per annum for a 40 hour work week.
In those circumstances, even if the first question of law was answered in Mr Panchal’s favour, and innocence of the deportee was considered relevant, it could not have affected the result in this case.
Was the IPT wrong in failing to consider all three limbs of the s 207 test?
The next question involved the construction of s 207(1)(a). It asks whether the IPT was required to consider all three limbs of the test in that provision. We do not consider this to be arguable. In Ye v Minister of Immigration a majority of the Supreme Court (the Chief Justice dissenting on this point) held that the test in s 47(3) of the Immigration Act 1987 required the statutory decision maker to assess three discrete elements.[16] That provision is materially identical to s 207(1)(a) of the current Act. The enquiry both then and now must be:
(i)whether there are exceptional circumstances;
(ii)whether those circumstances are “humanitarian”; and
(iii)whether they are such as to make it unjust or unduly harsh to require removal or deportation.
[16]Ye, above n 11, at [34].
If those hurdles are able to be overcome, then consideration must be given to the final public interest filter in s 207(1)(b). Mr Panchal argued that whether or not the IPT considered his circumstances were exceptional under the first limb, it was required to go on and consider the other two limbs. This Court has ruled in an appeal applying the Ye test, that each question must be answered in the affirmative and failure to satisfy any one of the three limbs will be fatal.[17] The IPT cannot be faulted for adopting that approach.
Did the IPT fail to consider all relevant matters in Mr Panchal’s background including his innocence?
[17]Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [10].
In posing his third question, Mr Panchal essentially argued that the IPT paid no sufficient regard either to the “compelling evidence that he would have been an asset for New Zealand to have” or to his innocence of wrongdoing, as exceptional circumstances of a humanitarian nature.
This question is not arguable. The IPT carefully considered the evidence at some length, sifting through those aspects that supported Mr Panchal’s case and those that tended to count against him. It cannot be said that the Tribunal failed to take account of any relevant evidence. Absent an argument in irrationality (and there was no suggestion of that in Mr Panchal’s case) the weighing exercise must be entirely for the IPT. We have already addressed Mr Panchal’s alleged innocence. No question of law can arise.
Did the IPT fail to give sufficient weight to the circumstances of Mr Panchal’s unborn child?
Question four related to the Panchals’ then unborn child. Mr Panchal argued that the Tribunal had failed to give primacy to the interests of that child. As the Supreme Court’s decision in Ye makes clear the interests of the child will be very important but not necessarily paramount.[18] The IPT weighed up the impact on the child of Mr Panchal’s return to India and took particular account of the fact that Mrs Panchal indicated she would follow him to India if he were deported. The family would not necessarily be divided. Hence, the IPT considered that Mr Panchal’s deportation would not inevitably undermine the interests of the child. This was a factual analysis involving the weighing up of competing considerations. No genuine question of law arises.
Procedural fairness
[18]Ye, above n 11, at [24].
Finally, Mr Panchal argued that he had been subjected to procedural unfairness in breach of s 27 of the New Zealand Bill of Rights Act 1990. Here the argument is essentially that Mr Panchal should have been put on notice before adverse findings were made that his actions reflected a “clear pattern” of fraud. It was further argued that the evidence was insufficient to establish this. Once again these points are not genuinely arguable. Mr Panchal’s character was always going to be in issue in light of s 202. Indeed, in Mr Panchal’s first question as posed, his argument was essentially that his character should have been in issue but was not. Mr Panchal made his own character a central issue in the IPT by arguing for both his innocence and his desirability as a resident. The extent to which it could be inferred that Mr Panchal knew of D’s fraud was thus a central matter in the appeal before the IPT. As to sufficiency of evidence, that, within generous limits, will always be a matter for the IPT. As we have said, we find ourselves in agreement with the IPT’s conclusion in that regard. There is insufficient substance in this point to allow leave to mount a judicial review proceeding in the High Court.
Result
The applications for leave to appeal to the High Court and to bring judicial review proceedings in the High Court are dismissed.
The respondent will be entitled to costs on a 2A basis together with the usual disbursements.
Solicitors:
Amicus Law for Applicant
Crown Law Office, Wellington for First and Second Respondent
2
4
0