Panchal v Minister of Immigration
[2017] NZHC 2080
•29 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-718 [2017] NZHC 2080
IN THE MATTER OF an application for leave to appeal under
s 245 of the Immigration Act 2009
BETWEEN
MAHESHKUMAR BAHECHARLAL PANCHAL
Applicant
AND
MINISTER OF IMMIGRATION Respondent
Cont…
Hearing: 22 August 2017 Appearances:
P Finau for the Applicant
J Cassie for the RespondentsJudgment:
29 August 2017
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 29 August 2017 at 3 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms P Finau, Richard Zhao Lawyers Limited t/a Amicus, Solicitors, Auckland
Ms J Cassie, Ministry of Business, Innovation and Employment, Wellington
PANCHAL v MINISTER OF IMMIGRATION [2017] NZHC 2080 [29 August 2017]
Cont…
IN THE MATTER OF an application for leave to judicially
review under s 249 of the Immigration Act
2009BETWEEN
MAHESHKUMAR BAHECHARLAL PANCHAL
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION Second Respondent
Introduction
[1] The applicant, Mr Panchal, seeks leave to appeal against, and to bring judicial review proceedings in respect of, a decision of the Immigration and Protection Tribunal.1 The Tribunal, as a respondent on the judicial review application, abides the decision of this Court. The Minister of Immigration, a respondent on both applications, opposes the applications.2
[2] The Tribunal’s decision was made on an appeal by Mr Panchal against a decision of the Minister that Mr Panchal was liable to deportation from New Zealand under s 158(1)(b)(ii) of the Immigration Act 2009 (the Act). The Minister determined that fraudulent information was provided in relation to a residence application made by Mr Panchal.
[3] Mr Panchal’s appeal to the Tribunal was brought on the facts and on
humanitarian grounds. The Tribunal dismissed the appeal on both grounds.
Background facts in broad outline
[4] Mr Panchal is from India. He arrived in New Zealand in February 2009 as the holder of a student visa. He obtained a National Diploma in Business from a New Zealand tertiary institute in January 2010.
[5] In September 2010 Mr Panchal commenced work as a cleaner for a cleaning company in Auckland. In November 2010 he applied for and was granted a work visa. He stated that he was employed as an “on site representative” for the cleaning company. Mr Panchal applied for and was granted a further work visa in January
2013 on the basis that he had been promoted to the position of “key account contract administrator” at the same cleaning company at the end of 2012.
[6] On 4 February 2013 Mr Panchal applied for residence under the Skilled
Migrant category based on his position as “key account contract administrator”. He
claimed that his position was a substantial match with the Australian and New
1 Panchal v Minister of Immigration [2017] NZIPT 600334.
2 The Minister is The Hon. Michael Woodhouse. Given the fact that he is a respondent it is relevant to record that Mr Woodhouse is not a relation of mine.
Zealand Standard Classification of Occupations description of a contract administrator. On 18 July 2013 Immigration New Zealand approved the application and Mr Panchal was granted a residence class visa.
[7] In November 2013 Immigration New Zealand discovered that false and misleading information had been provided by two other employees of the cleaning company in their applications for residence under the Skilled Migrant category. The applications had been supported by Milan Desai, the company account manager. Further inquiries by Immigration New Zealand with Mike Mulholland, the human resources manager of the company, revealed that Mr Panchal’s position in the company, and the positions of the other employees in the investigation, did not exist, and that Mr Desai did not have authority to employ them.
[8] The deportation liability notice was served on Mr Panchal in June 2016. He lodged his appeal to the Tribunal in July 2016.
Appeals to the Tribunal: the statutory provisions
[9] Section 158 of the Act provides that residence class visa holders are liable for deportation in various circumstances. As earlier noted, the Minister’s decision in this case was made under s 158(1)(b)(ii). This provision, and subsection (1A) which is also relevant, are as follows:
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.
[10] Section 202 of the Act prescribes the grounds for the Tribunal’s determination
of an appeal on the facts. The relevant ground is contained in s 202(ca), as follows:
202 Grounds for determining appeal on facts
The Tribunal must allow an appeal against liability for deportation on the facts where,—
…
(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:
[11] It is to be noted that section 202(ca) requires proof of two matters, with the onus resting on the appellant: (1) that there is no fraudulent, forged, false, or misleading information in the application; and (2) that no relevant information was concealed.
[12] An appeal to the Tribunal on humanitarian grounds is governed by s 207, which relevantly provides 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’s decision
[13] On Mr Panchal’s appeal on the facts, the Tribunal held that Mr Panchal had not established, on the balance of probabilities, that none of the information provided in relation to Mr Panchal’s residence application was fraudulent, and that no relevant information was concealed.
[14] The first part of that conclusion was based on unchallenged evidence from Mr Mulholland, the human resources manager of the cleaning company. That evidence positively established that the information contained in Mr Panchal’s application that he was employed as a key account contract administrator was fraudulent because there was no such position in the company, and that other information was fraudulent, false or misleading.
[15] Mr Panchal gave evidence that he had no knowledge of fraud in relation to his application, or employment. The Tribunal, applying decisions of this Court, held that s 158(1)(b) applied irrespective of Mr Panchal’s knowledge.3 The Tribunal nevertheless considered Mr Panchal’s evidence and rejected his contention that he was the innocent victim of Mr Desai’s actions.
[16] The Tribunal further held, in respect of the second limb of s 202(ca), that Mr Panchal had concealed relevant information in both of his visa applications by not disclosing that he had been employed initially by the company as a cleaner. The Tribunal’s findings in this regard were as follows:
[68] When the appellant applied for an Essential Skills work visa and a residence class visa, he relied on his offer of employment as a key account contract administrator. However, he did not disclose in either of his applications that he had been employed initially by the company as a cleaner. Had this information been disclosed to Immigration New Zealand, it would
3 Rajan v Minister of Immigration HC Auckland M1151/94, 31 July 1995; Jag Pal v Minister of
Immigration [2013] NZHC 2070, [2013] NZAR 1240.
have immediately raised their suspicion as to how someone could go from being a cleaner to varying and negotiating contracts. Whilst the appellant claimed that he had disclosed to his then lawyer that he was employed as a cleaner, and that it had been the lawyer who had then failed to include that information in his visa applications, no supporting evidence of that alleged conversation was provided to the Tribunal.
[17] On Mr Panchal’s appeal on humanitarian grounds, the Tribunal was not satisfied that the first limb of the test in s 207(1)(a) had been met. This was because it was not satisfied that the humanitarian circumstances relied on by Mr Panchal and his wife were exceptional. The Tribunal held that, given this conclusion, it was unnecessary to consider the remaining elements of s 207(1)(a), or the second limb of the test in s 207(1)(b).
Applications for leave: statutory provisions
[18] The circumstances in which a Tribunal decision can be challenged by an appeal or a judicial review proceeding are significantly limited by ss 245 and 249 of the Act.
[19] Under s 245, an appeal to the High Court can only be brought if leave is granted by the High Court, or the Court of Appeal. The provisions of s 245, and principles developed in the leading cases, require an applicant for leave to satisfy the Court on four matters:
(1) Leave can only be granted on a question of law.4
(2)Leave to appeal cannot be granted to challenge findings of fact unless purported findings of fact amount to an error of law. An applicant must surmount three difficult hurdles to establish that findings of fact
are so erroneous as to amount to an error of law.5
4 Section 245(1).
5 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
(3) The proposed appeal must raise a question of law “capable of bona
fide and serious argument”.6
(4)In determining whether leave should be granted for an appeal, the Court must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance, or for any other reason, it ought to be submitted to the High Court for a decision.7 In respect of the “any other reason” category of the assessment the Court of Appeal in Machida v Chief Executive of Immigration New Zealand said:8
Although [the “any other reason” category] is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal's decision standing, that this alternative requirement could be met.
(footnote omitted)
[20] Under s 249 a judicial review proceeding also requires leave of the High Court or Court of Appeal. On such an application the Court must have regard to three matters of present relevance:
(1)The first is whether the proposed review proceeding would involve issues that could be adequately dealt with in an appeal against the Tribunal decision.9 In practice, if the issue could adequately be dealt with in an appeal, leave to bring a judicial review proceeding is
unlikely to be granted.
6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413, applied in respect of s 245 of the Act in Minister of Immigration v Jooste [2014] NZCA 23 at [5]. Jooste was followed in Guo v Minister of Immigration [2014] NZCA 513 at [11].
7 Section 245(3).
8 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
9 Section 249(6)(a).
(2)The second consideration is whether the proposed review proceeding raises a question of law or fact capable of bona fide and serious argument.10
(3)The third consideration, as with applications for leave to appeal, is whether the issues in the judicial review proceeding are, by reason of their general or public importance, or for any other reason, ones that ought to be submitted to the High Court for review.
Evaluation: leave to appeal
[21] Ms Finau, counsel for Mr Panchal, submitted that there are four separate questions of law justifying leave to appeal. These are addressed under subheadings in the evaluation which follows. The subheadings are my reframing of the questions following Ms Finau’s oral submissions and having regard to the wording of the relevant statutory provisions.
Will an appellant in the Tribunal meet the onus on the appellant under s 202(ca) by establishing on the balance of probabilities that the appellant had no knowledge of the fraud?
[22] As earlier recorded, the Tribunal answered the above question in the negative, applying decisions to that effect of this Court in Rajan v Minister of Immigration11 and Jag Pal v Minister of Immigration.12
[23] Ms Finau submitted, first, that the Tribunal’s application of Rajan and Jag Pal was unduly narrow. Ms Finau cited other cases which she submitted approached the issue of the absence of knowledge of the applicant in a different way.13 I do not agree with this submission. The cases cited by Ms Finau are not on point. Those
cases were not directed to s 202(ca), or its statutory predecessors, and were
10 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36], holding that the test in Waller v Hider, above n 6, applies also to applications for leave to bring judicial review proceedings. Allada was followed in Kumar v Minister of Immigration [2016] NZHC 1593 at [35].
11 Rajan v Minister of Immigration, above n 3.
12 Jag Pal v Minister of Immigration, above n 3.
13 Prasad v Minister of Immigration HC Wellington CIV-2008-485-967, 1 October 2008 at [23];
R v Ming [2012] NZHC 1205 at [77]-[80]; and Chiu v Minister of Immigration [1994] 2 NZLR
541 (CA) at [549].
concerned with statutory provisions dealing with subject matters different from that of s 202(ca).
[24] Ms Finau submitted, in the alternative, that Rajan and Jag Pal were wrongly decided and that I should find that knowledge of the fraudulent information is a necessary element of the enquiry under s 202(ca). This would also mean that knowledge of the fraud would have to be established under s 158(1)(b)(ii) before a deportation notice could be issued.
[25] I am not persuaded that I should depart from the conclusions in the earlier cases. There is a comprehensive analysis of the issue by Asher J in Jag Pal. This includes discussion not only of Rajan but also other authorities to the same effect. I agree with Asher J’s conclusion, for the reasons he recorded, that it is unnecessary to establish that the applicant had knowledge of the fraud or forgery, falsity or misleading information.
[26] The conclusion reached in the earlier cases has been reinforced by amendments to s 158(1) and s 202 which came into force on 7 May 2015. Although Mr Panchal’s applications for the further work visa and the residence visa were made in 2013, the amendments in s 158, and therefore in s 202, apply to Mr Panchal’s case
because of the further 2015 amendment contained in s 158(1A)(b).14
[27] Before the amendments, s 158(1)(b)(i) and (ii) referred to visas “procured through fraud, forgery, false or misleading representation, or concealment of relevant information”. The word “procured” was reflected in the former s 202(c) – there was no subsection (ca). For an appeal to succeed under the former s 202(c)(i) and (ii) the Tribunal had to be satisfied that the residence 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”.
[28] The amended provisions have no reference to the procuring of a visa through fraud, forgery, false or misleading information, or concealment of relevant
information. The enquiry now required under s 202(ca) is expressly directed only to
14 Section 158(1A)(b) is recorded above at [9]
the quality of the information in the application. It requires only an objective assessment of the information provided, without any consideration of the state of mind of the applicant for the visa, or the state of mind of any other person.
[29] Section 158(1A) is a further amendment introduced on 7 May 2015 which further reinforces the conclusion reached in the earlier cases. This amendment is a fairly direct indication in the statute that knowledge on the part of the applicant that any of the information is fraudulent is not a necessary element of the grounds for issuing a deportation liability notice.
[30] There is a further amendment contained in s 202(ca) which adds another element to the matters required to be established by an appellant relying on s 202(ca). This is more relevant to the third proposed question of law, as discussed below at [42], but it is convenient at this point to consider the wording of this further amendment and its implications.
[31] The appellant now has the onus of establishing not only that there was no fraudulent, forged, false, or misleading information in the application, but also, as the additional element, that no relevant information was concealed. That second limb of the enquiry is made mandatory in the appeal before the Tribunal, because the word “or” which formerly preceded the words “concealment of relevant information”, has been replaced in subsection (ca) (and also in the amended subsection (c)), with the word “and”. This places a positive onus on the appellant to establish an absence of concealment, as well as absence from the application of fraudulent, forged, false, or misleading information.
[32] The first proposed question of law does not raise a question capable of bona fide and serious argument.
Was the Tribunal in error in holding it was unnecessary to assess all three of the elements of s 207(1)(a)?
[33] In Ye v Minister of Immigration the Supreme Court considered s 47(3) of the Immigration Act 1987.15 That provision is materially the same as s 207(1) of the Act. Although s 47(3) was directed to an appeal to the Removal Review Authority by a person unlawfully in New Zealand, the observations of the Supreme Court on the scope and application of s 47(3) apply to s 207(1).
[34] In the majority decision in Ye, Tipping J identified three “ingredients” in the first part of s 47(3), which is the equivalent of s 207(1)(a) (the first limb of s 207(1)). These are: (1) exceptional circumstances, (2) of a humanitarian nature and (3) that would make it unjust or unduly harsh for the person to be removed from New
Zealand.16
[35] The Tribunal, at the beginning of its assessment of the humanitarian appeal, referred expressly to those three ingredients of the first limb. At the conclusion of its discussion (and as noted earlier in this judgment), the Tribunal interpreted the analysis in Ye as meaning that, if there was a conclusion that there were no exceptional circumstances, the other two elements of s 207(1)(a) did not have to be considered.
[36] Ms Finau submitted that s 207(1)(a) does not contain any indication that a sequential approach to the analysis is justified and that all three elements need to be considered compendiously. Ms Finau further submitted that the Tribunal’s approach is contrary to the following statement in Ye:
[30] The subsection is drafted on the basis of two sequential considerations. The first step is to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person concerned to be removed from New Zealand. If that is not shown, the inquiry ends there and removal takes place. If it is shown that it would, on the statutory basis, be unjust or unduly harsh to remove the person from New Zealand, the decision maker must move to the second inquiry. This concerns whether, despite the injustice or undue harshness, it would in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. A person seeking to avoid removal must
15 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
16 At [34].
demonstrate not only qualifying injustice or undue harshness but also that it would not be contrary to the public interest for them to be allowed to remain in New Zealand.
(emphasis added by Ms Finau)
[37] That statement in Ye does not support Ms Finau’s submission. The sentence Ms Finau emphasised applies to the first limb, but it is not a direction that the three elements, not identified until four paragraphs later, must be assessed in a compendious way. Any doubt on the correct approach was removed by the Court of Appeal in Wu v Minister of Immigration.17 The Court upheld the Tribunal’s decision, which had also been upheld by the High Court, that it was unnecessary to consider the second and third elements of the first limb of s 207 if there had been a finding that there were no exceptional circumstances.
[38] The second proposed question of law does not raise a question capable of bona fide and serious argument.
Did the Tribunal make an error or law by failing to have regard to evidence supporting the humanitarian appeal?
[39] Under this heading there were two essentially distinct submissions for
Mr Panchal.
[40] The first was a submission that the Tribunal, in the assessment of the humanitarian appeal, failed to turn its mind to the fact, as argued by Mr Panchal, that he was, as Ms Finau put it, “entirely innocent of any wrongdoing perpetrated by Mr Desai”. This, in substance, takes the application for leave back to the s 202(ca) issue about knowledge.
[41] Although the Tribunal applied the High Court cases holding that knowledge of the fraud by the applicant is not required, it went on to consider Mr Panchal’s evidence and submissions that he had no knowledge. If Mr Panchal had been an
entirely innocent victim of fraud by another person, this may have been, and
17 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [10], upholding the decision of Palmer J in Wu v Minister of Immigration [2016] NZHC 1309 at [32]-[36], which in turn upheld the Tribunal articulation of the s 207 test in Wu v Minister of Immigration [2015] NZIPT 600135-137, 502234 at [45]-[46]. See also Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [54] and [79](c).
probably would have been, a relevant consideration under the second limb of s 207(1). For reasons recorded in the decision, the Tribunal rejected Mr Panchal’s assertion that he was the innocent victim of actions taken by Mr Desai on his own. A challenge to that conclusion is a challenge to a finding of fact. The challenge could only give rise to a question of law capable of bona fide and serious argument if, on this application for leave, Mr Panchal was able to satisfy me that he had met the
three tier test articulated in Taafi.18 He has not done so.
[42] In addition, Mr Panchal’s argument that he was an innocent victim of Mr Desai does not address the additional onus on him under s 202(ca) to establish that, in the application he made, and for which Mr Desai had no responsibility, there was no concealment of relevant information. As recorded earlier in this judgment, the Tribunal found as a matter of fact that Mr Panchal had concealed relevant information.19
[43] The separate submission under this heading was that the Tribunal failed to weigh evidence of a range of positive factors supporting an argument that Mr Panchal “would be an asset for New Zealand”; that is, that there are positive reasons for a conclusion that Mr Panchal should be permitted to remain in New Zealand.
[44] In this regard, there was no error of law by the Tribunal capable of bona fide and serious argument. The Tribunal did not ignore the evidence of a positive nature advanced by and for Mr Panchal. It was outlined in some detail in the decision. It was not weighed against negative considerations, but this was not an error. This is because the evidence put forward by Mr Panchal of a positive nature, in respect of the contribution he might make to New Zealand, was not evidence the Tribunal was bound to consider under the first limb of s 207(1). As noted above, it would have been evidence relevant to assessment under the second limb but, given the Tribunal’s conclusion on exceptional circumstances, it was unnecessary to assess the second
limb.
18 Taafi v Minister of Immigration, above n 5.
19 Above at [16].
Did the Tribunal err under s 207 in its consideration of the interests of the unborn child of Mr and Mrs Panchal?
[45] Mr Panchal married Jalpa Maheshkumar Panchal in 2015. Mrs Panchal was living in India at the time. Mrs Panchal arrived in New Zealand in October 2015 on a visitor permit.
[46] At the time of the Tribunal hearing, in February 2017, Mrs Panchal was 29 years old. She had a student visa valid to 5 September 2017. And she was four months pregnant. The baby was born on 1 August 2017, in New Zealand. In consequence the child is a New Zealand citizen.20
[47] Mrs Panchal’s evidence to the Tribunal included the following:
I have just started my education in New Zealand and I want to work hard for a better future for my child. If I return to India with Maheshkumar I will not be able to continue the education. I also cannot remain here without him. He is supporting me financially. My education will stop if he is forced to return. He will not be able to support me from India, it will be too expensive.
There are a lot of financial problems that I am really worried about and I have no idea what the future is for my child and my husband. This decision will impact not only on his life, but our child and mine.
[48] Ms Finau submitted, in effect, that there was an error of law by the Tribunal by failing to take account of all relevant circumstances relating to the child, with this being contrary to New Zealand’s obligation to observe the relevant provisions of the United Nations Convention on the Rights of the Child (UNCROC).21 New Zealand is a party to the convention.
[49] The submission was directed primarily to the following statement in the
Tribunal’s consideration of the first limb of s 207:
[78] The appellant’s wife is approximately four months pregnant and is expected to give birth in August 2017. There is no medical evidence before the Tribunal that indicates that Mrs Panchal’s return to India would compromise her health or the health of her child. The appellant and his wife are in good health.
20 By consent, copies of the birth certificate and a passport issued to the child on 14 August 2017 wer produced for the purpose of the present applications for leave.
21 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
[50] Ms Finau submitted that a child’s interests are primary, if not paramount, in the removal or deportation of a parent. The submission was made by reference to Ye, where the Court stated the law as follows:22
Article 3(1) [of UNCROC] provides that in all actions concerning children, by public and administrative authorities, the best interests of the child shall be “a primary consideration”. A primary consideration does not mean the primary consideration, much less the paramount consideration. There is no basis for reading in, as the appellants argued, the Care of Children Act 2004 standard of “first and paramount consideration”.
[51] Importantly, the Supreme Court also said:23
It is appropriate, in the light of New Zealand's obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child's interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.
(emphasis added)
[52] In my judgment, a question of law capable of bona fide or serious argument is not raised by Mr Panchal’s argument under this heading. The Tribunal’s undoubtedly succinct assessment at [78] has to be considered in light of matters referred to earlier in the Tribunal’s decision and also, in particular, Mrs Panchal’s own evidence and the fact that the child, at the date of the Tribunal hearing, had not been born. Mrs Panchal’s own evidence made clear that this is not a case where, if Mr Panchal is deported, his child will be separated from him. Mrs Panchal clearly states, in the passage quoted above, that if Mr Panchal returns to India she and their child will return with him.
[53] Any necessary assessment of the interests of the child would therefore require consideration of the circumstances on return of the family to India, and the Tribunal did assess those circumstances. Beyond that, and because the child was unborn, it is
understandable that the more direct assessment in respect of matters affecting the
22 Ye v Minister of Immigration, above n 15, at [24].
23 At [25].
child alone was that in respect of health and contained in the paragraph quoted above.
[54] The concern of Mr and Mrs Panchal for the future of their child in India, in light of their evidence of straitened circumstances for them in India compared with those in New Zealand, is understandable. But the statutory criteria, coupled with the Supreme Court’s directions on the correct approach to UNCROC, do not enable this Court to grant leave to appeal in respect of the Tribunal’s conclusions directed to Mr and Mrs Panchal’s child. There is no question capable of bona fide and serious argument to the effect that the Tribunal made an error of law in its assessment of the interests of the child.
Evaluation: leave to bring a judicial review proceeding
[55] The proposed judicial review proceeding is founded on a contention that, at the Tribunal hearing, there was a breach of Mr Panchal’s right to the observance of the principles of natural justice.24 The specific contentions were that Mr Panchal was cross-examined on matters that were not relevant to the issues before the Tribunal, or in respect of which he had had no prior notice, and these matters were given weight by the Tribunal.
[56] For the Minister, Ms Cassie submitted, first, that the proposed ground for judicial review raised an issue which could adequately be dealt with on appeal so that Mr Panchal had not met the first test for leave contained in s 249(6).
[57] It is unnecessary to consider this preliminary point for the Minister. This is because I am satisfied that the argument, whether considered as a judicial review ground or an appeal ground, has no merit. The matters in respect of which Mr Panchal complains were not irrelevant cross-examination. The questions and answers, leading to observations by the Tribunal, arose from the central subject matter of the appeal and evidence advanced by or for Mr Panchal. There also was no requirement for the Minister, as respondent in the Tribunal, to give notice to
witnesses of questions proposed to be put.
24 New Zealand Bill of Rights Act 1990, s 27.
Result
[58] Both applications for leave are dismissed.
[59] The Minister sought costs. Having succeeded, an order for costs in favour of the Minister would normally follow, and I would allow them on a 2B basis, together with reasonable disbursements. There were no submissions for Mr Panchal on costs. In consequence, I will reserve leave for Mr Panchal to make submissions. Leave is granted on the following conditions:
(a) Any submissions on costs for Mr Panchal must be filed and served by
Friday, 15 September 2017.
(b)If there are submissions for Mr Panchal any submissions in response for the Minister should be filed and served by Friday, 29 September
2017.
(c) If no submissions for Mr Panchal have been filed by 15 September,
there will be an order that Mr Panchal pay the Minister’s costs on a
2B basis together with reasonable disbursements.
Woodhouse J
7
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