Patel v Immigration and Protection Tribunal
[2019] NZHC 1618
•15 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1700
[2019] NZHC 1618
UNDER Section 20 of the Judicial Review Procedure Act 2016 and section 56 of the Senior Courts Act 2016 IN THE MATTER
an application for leave to appeal to the Court of Appeal under section 249B of the Immigration Act 2009
BETWEEN
KRUTI PATEL
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE MINISTER OF IMMIGRATION
Second Respondent…/cont
Hearing: 4 July 2019 Appearances:
A Schaaf for the Applicant
I Clarke for the Respondents
Judgment:
15 July 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 15 July 2019 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: M Tuilotolava, Manukau
Crown Law, Wellington Counsel: A Schaaf, Onehunga, Auckland
PATEL v IMMIGRATION AND PROTECTION TRIBUNAL [2019] NZHC 1618 [15 July 2019]
CIV-2017-404-1691
IN THE MATTER of an application for leave to appeal to the
Court of Appeal a decision of the High Court under section 246 of the Immigration Act 2009
IN THE MATTER of an application for leave to appeal to the
Court of Appeal under section 56(3) of the Senior Courts Act 2016 against a decision of the High Court not to adduce further evidence on an appeal under section 245 of the Immigration Act 2009
BETWEEN KRUTI PATEL
Applicant
AND THE MINISTER OF IMMIGRATION
Respondent
Introduction
[1] Ms Patel applies for leave to appeal my judgment of 8 October 2018 to the Court of Appeal.1 In that judgment (the substantive judgment), I dismissed Ms Patel’s appeal and application for review of a decision of the Immigration and Protection Tribunal (the Tribunal) which had found Ms Patel liable for deportation. Ms Patel also applies for leave to appeal my decision in the substantive judgment refusing to admit further evidence on appeal.
[2] The second respondent, the Minster of Immigration opposes the granting of leave.
Background
[3]The facts are set out in the substantive judgment at [8]–[22]. In summary:
(a)Ms Patel came to New Zealand in 2008 on a student permit. She married Vishal Patel in New Zealand in 2011. Mr Patel applied for residence and included Ms Patel in his application.
(b)Meanwhile, Hardik Jingar, who was living in India, had contacted Immigration New Zealand (INZ) in 2008 indicating that Ms Patel had married him in India in 2007. INZ raised Mr Jingar’s claims in interviews with Ms Patel in 2011 and 2012 (in determining whether her relationship with Mr Patel was genuine and stable as required by immigration instructions). Ms Patel claimed she never married Mr Jingar. INZ accepted this and Ms Patel was granted residence in August 2012.
(c)The Patels were granted permanent residence in September 2014 and separated in October 2014. Mr Jingar contacted INZ again in 2015. He repeated his claim that he was married to Ms Patel. He informed INZ that Ms Patel had commenced divorce proceedings against him in 2009 (which were dismissed in 2011 for want of prosecution).
1 Patel v Minister of Immigration [2018] NZHC 2616.
(d)INZ sought to verify Mr Jingar’s claims through its New Dehli office. Those investigations indicated the marriage was registered and regarded as legally valid, and Ms Patel had indeed commenced divorce proceedings.
(e)Ms Patel was served with a deportation liability notice in August 2016 on the basis she had concealed relevant information in her application for a resident visa. If INZ had that relevant information, it may have reached a different view as to whether the Patels were in a genuine and stable relationship.
(f)Ms Patel appealed to the Tribunal on the facts and on humanitarian grounds.2 Her appeal was dismissed. Ms Patel was granted leave to appeal to this Court on two questions of law and to bring an application for judicial review on one question.3
[4]The two questions of law on appeal were:
(a)Did the Tribunal err by concluding Ms Patel had “concealed” relevant information within the meaning of s 202(ca) of the Immigration Act 2009 (the Act)?
(b)Did the Tribunal err by failing to take into account whether Ms Patel intentionally concealed relevant information when assessing whether there were exceptional circumstances of a humanitarian nature under s 207 of the Act?
[5]The question of law on the application for review was:
(a)Did Ms Patel’s previous counsel err by failing to adduce evidence relevant to the validity of the marriage for the purposes of the Tribunal hearing? If so, did such error cause procedural unfairness?
2 Patel v Minister of Immigration [2017] NZIPT 600365.
3 Patel v Minister of Immigration [2018] NZHC 577 at [86]–[87].
[6] I heard and dismissed the appeal and the application for judicial review. I also refused Ms Patel’s application to adduce further evidence on appeal.4
Proposed questions on which leave is sought
[7] Ms Patel seeks leave to appeal on five questions of law in relation to my decision dismissing her appeal:
(a)Did the High Court err in finding that culpability only becomes relevant after consideration of “exceptional circumstances”, and failing to follow or give deference to the obiter dicta statement of the Supreme Court in Guo v Minister of Immigration … that no fault is an exceptional humanitarian circumstance?5
(b)Did the High Court err in its interpretation of what could be considered humanitarian circumstances under s 270(1) of the Immigration Act 2009?
(c)Did the High Court err in not admitting further evidence that points to the applicant [Ms Patel] being a victim of fraud and for this to be considered as a humanitarian circumstance?
(d)Did the High Court err in concluding that the applicant concealed relevant information, namely the divorce proceedings, and in not considering the evidence that the marriage could have been fraudulently registered, which would have a bearing on whether the divorce application was “relevant information” in the circumstances?
(e)Did the High Court err in not considering the further evidence that points to the applicant’s signature being forged on the marriage documents, and to make a finding of fact about the marriage under section 202(ca) of the Immigration Act 2009, a relevant consideration as to what “relevant information” was concealed?
[8] As to my decision dismissing the application for judicial review, Ms Patel seeks leave to appeal on three questions:
(a)Did the High Court err in deciding that the further evidence admitted by consent, and not produced by the applicant’s previous counsel, would not have made any difference to the outcome of the decision, taking into account the applicable provisions of the Immigration Act 2009 and circumstances of the case?
(b)Did the High Court err in not considering that it was a “humanitarian circumstance” that the applicant was a possible victim of fraud in its conclusion in (a)?
4 The Minister consented to the further evidence being admitted on review.
5 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
(c)Did the High Court err in not making a finding that there was procedural unfairness to the applicant due to failure of her previous counsel to produce evidence?
[9] In relation to my decision to refuse to allow further evidence on appeal, Ms Patel says in her application that the following evidence should have been admitted:
(a)Evidence from a handwriting expert, Mr Michael Maran, that the signatures attributed to Ms Patel in the marriage certificates from India (of her alleged marriage to Mr Jingar) are not her signatures;
(b)Evidence from Ms Patel about the “Memorandum of Marriage” obtained after the Tribunal hearing, clear copies of the marriage documents before the Tribunal, and explanations about why relevant evidence was not produced before the Tribunal; and
(c)Affidavit evidence from Ms Patel’s mother, Ms Divya Chandrakant Vala, about her efforts to track down the lawyer who was said to have provided advice to Ms Patel that she should file for divorce and not to apply for her marriage to Mr Jingar to be declared null and void.
Approach to leave to appeal
[10] Ms Patel applies for leave to appeal under ss 246(1) and 249B(2) of the Act and s 56 of the Senior Courts Act 2016.
[11] In determining whether to grant leave under ss 246 and 249B, the Court must assess whether the appeal raises some question capable of bona fide and serious argument involving some interest of sufficient importance to outweigh the cost and delay of a further appeal.6
6 Wu v Minister of Immigration [2016] NZCA 511 at [12].
[12] Leave may be granted only if the proposed appeal involves a question of law which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.7
[13] The test for whether a question reaches the threshold of “general or public importance” is similar to that applying to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908.8 Therefore, the comments of the Court of Appeal in Waller v Hider are applicable:9
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[14] As to the “any other reason” limb of the test, the Court of Appeal has affirmed that leave to appeal under that limb is only justified if exceptional circumstances exist involving “individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.10
[15]Ultimately, as Downs J explained in AR v Immigration and Protection Tribunal
“The gateway is deliberately narrow. Error-correction is not anticipated.”11
First application: the appeal
[16] The first application, Ms Patel’s application for leave to appeal my decision dismissing her appeal against the Tribunal’s decision, has five proposed questions.12
7 Immigration Act 2009, ss 246(2) and 249B(3).
8 Minister of Immigration v Jooste [2014] NZCA 23 at [5].
9 Waller v Hider [1998] 1 NZLR 412 (CA) at 413. See also Snee v Snee (1999) 13 PRNZ 609 (CA) at [15]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].
10 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
11 AR v Immigration and Protection Tribunal [2017] NZHC 2982 at [2].
12 See the proposed questions listed above at [7].
Appeal question (a)
[17] The first question raises two matters: (a) is culpability relevant in considering whether there are exceptional circumstances of a humanitarian nature; and (b) how are the lower courts to treat, what Ms Schaaf for Ms Patel characterises as, obiter dicta statements of the Supreme Court?
[18] Ms Schaaf submits that it is arguable that the decision of the Supreme Court in Guo v Minister of Immigration13 is authority for the proposition that absence of fault is relevant to the determination of what constitutes exceptional circumstances of a humanitarian nature. She relies on the following passage from that judgment:14
Eligibility for deportation is usually associated with fault on the part of the person to be deported, most obviously, the commission of offences or misrepresentations on applications for residency. In this context, the present appeals have the unusual feature that those to be deported (Jiaxi and Jiaming) are without any fault. For this reason, it could fairly be said that the circumstances in relation to them were “exceptional”. This was accepted by the Tribunal.
[19] Ms Schaaf submits that this principle has been applied in High Court decisions such as Minister of Immigration v Q.15 She says that, given that there are conflicting High Court decisions on the matter, the Court of Appeal needs to determine the issue.
[20]Section 207 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.
…
13 Guo v Minister of Immigration, above n 5.
14 At [10] (footnotes omitted).
15 Minister of Immigration v Q [2018] NZHC 3173.
[21] In relation to the first matter, since the hearing of the application for leave, counsel for the Minister has provided the Court with a copy of Gendall J’s judgment (issued 4 July 2019) granting leave to the Minister to appeal his decision in Minister of Immigration v Q to the Court of Appeal.16
[22] In that case, the substantive judgment concerned an appeal from a decision of the Tribunal (as is the case here).17 Leave to appeal the Tribunal’s decision to the High Court was required. In granting leave, Dunningham J held:18
… I consider that the Tribunal would be assisted if there was a clear statement of law on exactly how absence of fault is to be taken into account under s 207.
[23] The Judge then gave leave to appeal to the High Court on the following question of law:19
Did the Tribunal err in law by considering the respondent’s absence of fault as a factor relevant to its assessment of “exceptional circumstances of a humanitarian nature” in s 207(1)(a) of the Act?
[24]In his substantive judgment, Gendall J answered that question in the negative.
[25] In his judgment granting leave to appeal his decision to the Court of Appeal, Gendall J stated:20
I am satisfied that leave to appeal the judgment to the Court of Appeal on the proposed question of law which I have outlined above involves a question of general or public importance. This relates to what may be the correct approach under s 207 of the Act to absence of fault and it is a matter I accept that needs to be clarified. A general consideration to ensure that a decision of whether or not to make a humanitarian exception in cases such as the present one is carried out correctly and according to law is an important one.
[26] There is thus an available argument to the applicant in this case that she should similarly be granted leave, at least on the first part of the first question and that it may be a case for both appeals to be heard together. However, before I determine this issue, consideration of the other questions of law is required.
16 Minister of Immigration v Q [2019] NZHC 1559.
17 Minister of Immigration v Q (substantive HC judgment), above n 15.
18 Minister of Immigration v Q [2018] NZHC 1071 at [40].
19 At [41] (emphasis omitted).
20 Minister of Immigration v Q (leave to appeal to CA), above n 16, at [14].
[27] As to the second part of question (a), namely how the High Court is to treat obiter statements (as described by Ms Schaaf) of the Supreme Court, Ms Schaaf says that the development in Australia of lower courts being bound to follow obiter dicta statements of the High Court of Australia is an issue that could be considered by the New Zealand courts.21
[28] However, as Ms Clarke for the Minister submits, the doctrine of precedent is well-established in common law legal systems. In any event, I did not decline to “follow or give deference” to obiter dicta statements; I simply did not accept Ms Patel’s interpretation of what the Supreme Court did in Guo. Accordingly, this part of question (a) is not seriously arguable nor is there any general or public importance.
[29] I refuse leave in relation to the second part of question (a). I will return to the first part of question (a) after considering the further questions.
Appeal questions (b) and (c)
[30] It is convenient to deal with the second and third questions together. They concern whether Ms Patel allegedly being a victim of fraud is relevant in considering humanitarian circumstances.
[31] Ms Schaaf submits that it is arguable that being a victim of fraud could be considered a humanitarian circumstance (and that the Tribunal should have taken it into account). She further submits that this is a matter of general or public importance because it will clarify what constitutes “humanitarian circumstances”.
[32]I do not consider that the questions are seriously arguable.
[33] First, Ms Patel was not granted leave in respect of the Tribunal’s approach to the alleged fraud. The relevant leave question was limited to culpability.22 As Ms Clarke submits, being a victim of fraud is not the same thing as culpability. The
21 See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89.
22 The question was “Did the Tribunal err by failing to take into account whether Ms Patel intentionally concealed relevant information in assessing whether there were exceptional circumstances of a humanitarian nature under s 207 of the Act?” (emphasis added).
former relates to the issue of the genuineness of the marriage documents. The latter relates to the extent to which Ms Patel was at fault for not disclosing the divorce proceedings.
[34] Secondly, being a victim of fraud is not a humanitarian circumstance. To meet the high threshold in the first stage of the inquiry under s 207, the alleged exceptional circumstances must “be well outside the normal run of circumstances” and “truly an exception rather than the rule”.23 The types of circumstances that will be relevant in the first stage of the inquiry are signalled through the use of the word “humanitarian”. Such circumstances will relate to, for example, an appellant’s welfare, safety or happiness.24 Being a victim of fraud would therefore be outside the scope of the first stage of the humanitarian appeal. Additionally, being a victim of fraud is not a matter going to absence of fault. In other words, however Guo is interpreted, being a victim of fraud does not apply.
[35] Finally, and in any event, the Tribunal considered what could be said to be substantive humanitarian circumstances arising from Ms Patel’s relationship with Mr Jingar:
(a)In considering Ms Patel’s return to India, the Tribunal considered Mr Jingar’s manipulation of Ms Patel;25 alleged sexual assaults by Mr Jingar and the possibility of future assaults;26 Mr Jingar’s engagement with INZ;27 Mr Jingar’s alleged harassment of Ms Patel’s family;28 the likelihood Mr Jingar would try to contact Ms Patel on her return;29 and the extent to which Ms Patel could seek police assistance.30
23 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
24 Minister of Immigration v Q (substantive HC judgment), above n 15, at [28].
25 Patel v Minister of Immigration (IPT), above n 2, at [91].
26 At [85], [88] and [99].
27 At [90].
28 At [90].
29 At [90].
30 At [94].
(b)The Tribunal found that Ms Patel has a depressive condition which may be connected with a sexual assault by Mr Jingar,31 but also found that the evidence does not establish a risk of further sexual assault.32 Ms Patel voluntarily met Mr Jingar on a number of occasions in India in 2014 to 2015 and allowed him to take photographs with her and her daughter, but she need not do so in the future.33
[36] Thus, I do not consider the issues raised in questions (b) and (c) are seriously arguable. Nor do the questions raise any matter of general or public importance requiring appellate consideration. The Supreme Court has commented that it is unnecessary and undesirable to attempt to define the term “humanitarian circumstances”.34
Appeal questions (d) and (e)
[37] It is also convenient to deal with the fourth and fifth questions together. They relate to whether evidence of the marriage being fraudulently registered is relevant in assessing whether the concealed information (the divorce proceeding) is “relevant information” under s 202(ca).
[38] In my substantive judgment, I determined that the test under s 202(ca) is: whether the applicant knows the information exists; the information is objectively relevant; and the applicant fails to disclose the information.35
[39] Ms Schaaf submits that if the marriage was fraudulently registered, the divorce proceeding may not be relevant information; there is evidence pointing to the marriage document having been forged; accordingly, the divorce proceeding may not be relevant information.
[40] But that does not change the fact that Ms Patel knew of the divorce proceeding, which was objectively relevant to INZ’s assessment of whether the Patels were in a
31 At [99].
32 At [100].
33 At [100].
34 Ye v Minister of Immigration, above n 23, at [34].
35 Patel v Minister of Immigration (HC), above n 1, at [46] and [60].
“genuine and stable” relationship (for the purposes of whether to grant the 2011 visa application). Even accepting that there was other information supporting Ms Patel’s position that her relationship with Mr Patel was genuine and stable (such as evidence suggesting the marriage documents were forged), the existence of the information supporting that position does not make information supporting another position irrelevant. Relevance must be assessed objectively. Failing to disclose the information regarding the divorce proceedings to INZ deprived it of the opportunity to undertake a full assessment of the application. Accordingly, the questions are not seriously arguable.
[41] As to Ms Schaaf’s submission that INZ’s limited knowledge about Ms Patel’s relationship with Mr Jingar removed from her the duty of candour, I am not satisfied that this is seriously arguable. The duty to provide full and accurate information lies with the applicant. The applicant has control over the information. Ms Patel’s partial disclosure of some information does not transfer responsibility to INZ to inquire.
[42] Ms Schaaf added an oral submission focussing on the word “conceal”. She submitted that once Ms Patel had made partial disclosure, INZ could have made its own inquiries. In those circumstances Ms Patel could not be said to have “concealed” information. I do not accept that that submission is seriously arguable for reasons set out in my substantive judgment in which I considered the meaning of “concealed”.36
[43]For all the above reasons I refuse leave on questions (d) and (e).
Appeal question (a) revisited
[44] I now return to the first part of appeal question (a), that is whether culpability is relevant in assessing whether there are exceptional circumstances of a humanitarian nature. In my substantive judgment I held it was not.37 I also did not accept Ms Schaaf’s submission that the case law was inconsistent on this issue.38 However, in case I am wrong and given the approach by Gendall J, I accept that this may be a question of law of general or public importance requiring appellate clarification.
36 At [45]–[71].
37 At [83].
38 At [83].
[45] But, having regard to my findings in relation to the other appeal questions and the judgments of Gendall J, I am not satisfied that the matter is seriously arguable on the facts of this case. Whether absence of fault is relevant in assessing exceptional humanitarian circumstances is immaterial in this case. This is for two reasons.
[46] First, I do not consider that it is seriously arguable that there was an absence of fault on part of Ms Patel in failing to disclose relevant information. The fact is that she chose to disclose some information (such as her belief as to the fraudulent nature of the marriage) and to withhold other information (such as the divorce proceedings and reports received by her parents suggesting the marriage was registered).
[47] Alternatively, even if the Court of Appeal were to uphold Gendall J’s decision that absence of fault is relevant at the first stage of the s 207 inquiry, the test as outlined in Minister of Immigration v Q is not satisfied on the present facts. In that case, Gendall J considered absence of fault to be a general additional factor; it should not itself be analysed as constituting a humanitarian circumstance.39 I have already held, in relation to appeal questions (b) and (c), that being a victim of fraud is not a humanitarian circumstance. Therefore, there is no factor constituting a humanitarian circumstance to which any additional consideration of absence of fault can attach (assuming there were such absence of fault despite my decision to the contrary).
[48] In summary, whilst I accept (as an academic point) that there may be a question of law requiring appellate consideration, it is not seriously arguable on the facts of this case that there was an absence of fault amounting to humanitarian circumstances or that there were humanitarian circumstances to which “absence of fault considerations can then be factored in”.40
[49]I therefore refuse leave to appeal my decision on the appeal.
Second application: further evidence
[50] Ms Patel applied to adduce three further pieces of evidence on appeal as set out in [9] above.
39 Minister of Immigration v Q (substantive HC judgment), above n 15, at [37].
40 At [39].
[51] Rule 20.16 of the High Court Rules 2016 allows the Court to grant leave to adduce further evidence if there is “special reason” to do so. But further evidence will rarely be admitted on appeal especially if, as here, the questions before the Court are questions of law. An appeal is not an opportunity to bolster an applicant’s case with new evidence.41 Thus, I consider that the law on adducing further evidence on appeals on points of law is well settled and no appellate clarification is necessary or desirable.
[52] Ms Schaaf submits that there are special reasons here. She says the evidence is cogent and will assist the determination of the application for leave on the questions of law in relation to the appeal. She further submits that there will be no delay as both this application and the application for leave to appeal the substantive decision can be heard together. And that, in any event, the matters in this application can be raised in the substantive appeal, if leave is granted for the substantive appeal.
[53] I am not satisfied that such special reasons are seriously arguable here. As Ms Clarke submits, the proposed evidence was not relevant to the questions of law on appeal in this Court nor do they affect Ms Patel’s underlying deportation liability. It was the concealment of the divorce proceedings (relevant information), and not that she was married to Mr Jingar per se, that was the basis of the Tribunal’s decision. The further evidence does nothing to change that position.
[54] This application essentially duplicates part of Ms Patel’s application for leave to appeal the substantive decision dismissing the appeal. Thus, I repeat my reasoning above at [37]–[41] in relation to that application in dismissing this application.
Third application: judicial review
[55] I turn now to the proposed questions in relation to Ms Patel’s judicial review application.42
[56] Ms Patel says her previous counsel failed to present the following evidence to the Tribunal:
41 McGechan on Procedure (online ed, Thomson Reuters) at [HR20.16.01].
42 See the proposed questions listed above at [8].
(a)Forensic analysis of the signature in the “Memorandum for Marriage” and the certificate of the Hindu priest who officiated at the marriage;
(b)Emails between Mr Jingar and MBIE staff alleging that he was the father of the applicant’s daughter even though the applicant was not in, or near, India when her daughter was conceived; and
(c)Evidence from the lawyer that the applicant sought advice from in India, or from another lawyer in India about the plausibility of the statement made by the applicant that she was advised to file divorce from Mr Jingar rather than to have the marriage declared null and void.
[57] Ms Schaaf submits that the matters raised are of general or public importance as they will clarify:
(a)the meaning of what constitutes “humanitarian circumstances”;
(b)whether failure by a legal representative to provide relevant information could be ground for judicial review in cases other than refugee cases;
(c)the circumstances and information that would amount to failure by a legal representative; and
(d)inferences to be drawn from the silence of the previous legal counsel after being notified of the claim of failure to present evidence.
[58] The first and second questions are about whether the further evidence would have made any difference to the outcome of decision. Ms Schaaf says that if Ms Patel is a victim of fraud (and this can allegedly be proved by the further evidence), then this is arguably a humanitarian circumstance. However, whether or not Ms Patel is a victim of fraud is not relevant to the question of whether Ms Patel had concealed relevant information from INZ.43 Furthermore, evidence relating to Ms Patel being a
43 See my reasoning above at [40]–[42].
victim of fraud would not have changed the outcome of the humanitarian appeal because being a victim of fraud is not a humanitarian circumstance.44
[59] Moreover, the meaning of what constitutes “humanitarian circumstances” does not require appellate clarification, as noted above at [36].45
[60] The third question is about whether there was procedural unfairness to Ms Patel due to failure of her previous counsel to produce evidence. As Edwards J noted in determining the application for leave to appeal to the High Court:46
… whether counsel error causing procedural unfairness is a ground of review in deportation cases [as opposed to refugee status cases] involves a question of law of general or public importance which extends beyond the particular circumstances of Ms Patel’s case.
[61]However, Edwards J also noted:
[85] Finally, counsel has not produced any evidence from which it could be inferred that the failure to adduce this evidence was a result of counsel error. However, counsel for the Minister did not oppose the application on this ground. Accordingly, for the purposes of determining the leave application I have accepted counsel for Ms Patel’s submission that the omission was a result of counsel error. However, evidence relevant to that alleged error will need to be produced at the review hearing if Ms Patel is going to establish that such an error resulted in procedural unfairness.
[62] Ms Patel did not produce any evidence of counsel error. I do not accept her submission that the Court can draw such an inference from the lack of response from former counsel to Ms Patel’s affidavit which was served on him.
[63] The materiality of the evidence allegedly omitted by counsel error will depend on the scope of the relevant test. I have already determined that it is not seriously arguable that being a victim of fraud is relevant in assessing humanitarian circumstance. As I observed in my substantive judgment:
[116] Ultimately, this ground of appeal fails on the basis that any failure to call this further evidence has not caused procedural unfairness. Even if, taken at its highest, the further evidence proves that Ms Patel was a victim of fraud,
44 See my reasoning above at [33]–[35].
45 Ye v Minister of Immigration, above n 24, at [34].
46 Patel v Minister of Immigration (leave to appeal to HC), above n 3, at [81].
it cannot be said that the evidence was important evidence that would have changed the Tribunal’s decision.
[64] In summary, none of the questions on which leave is sought to appeal my decision on judicial review is seriously arguable.
Result
[65]I dismiss each of the three applications for leave to appeal.
[66] Ms Patel is legally aided. Ms Clarke does not seek costs. I make an order that costs are to lie where they fall.
Gordon J
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