Patel v Immigration and Protection Tribunal

Ms Patel, an Indian citizen, sought leave to appeal against the Immigration and Protection Tribunal's decision to uphold a deportation liability notice served on her by Immigration New Zealand. The notice was based on her alleged concealment of relevant information during an application for a resident visa, specifically, her marriage to Mr Jingar in 2007 and the subsequent divorce proceedings she initiated against him in 2009. The Tribunal found that she had concealed the fact of the divorce proceedings and dismissed her appeal. The High Court also dismissed her appeal and declined her application for judicial review, finding that absence of fault was not relevant to the determination of what constitutes exceptional circumstances of a humanitarian nature for the purposes of s 207 of the Immigration Act 2009. Ms Patel now seeks leave to appeal to the Court of Appeal against these decisions.

The legal issues before the Court of Appeal were whether Ms Patel's culpability, including her alleged victimisation by marriage fraud, should have been considered in her humanitarian appeal under s 207, whether she concealed relevant information when she failed to disclose the divorce proceedings, and the relevance and materiality of the further evidence she wished to call. Ms Patel's counsel submitted that the validity of the marriage was central to the case, and that the divorce proceedings were only relevant if the marriage was valid. However, the Court held that the provisions of the Immigration Act made it clear that an applicant would be treated as having concealed relevant information if they knew the information existed, the information was objectively relevant, and the applicant did not disclose it. Ms Patel's failure to disclose the divorce proceedings was self-evidently relevant to the question of whether she and Mr Patel were in a genuine and stable relationship. The Court also held that the issue of absence of fault did not arise on the facts of this case, as Ms Patel was not without fault.

The Court of Appeal declined the applications for leave to appeal, finding that the arguments raised were not seriously arguable. The Court held that the validity of the marriage was not the critical issue, and that the failure to disclose the divorce proceedings was self-evidently relevant to the question of whether Ms Patel and Mr Patel were in a genuine and stable relationship. The Court also held that absence of fault was not relevant to the determination of what constitutes exceptional circumstances of a humanitarian nature for the purposes of s 207, and that Ms Patel was not without fault.

The Court made no award of costs as Ms Patel was legally aided.