Sidhu v Chief Executive of the Ministry of Business, Innovation and Employment
[2014] NZHC 2841
•14 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001586 [2014] NZHC 2841
BETWEEN AMANDEEP KAUR SIDHU
Plaintiff
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant
Hearing: 18 September 2014 Appearances:
David Ryken for the Plaintiff
Anna Longdill and William Fotherby for the DefendantJudgment:
14 November 2014
RESERVED JUDGMENT OF MOORE J
This judgment was delivered by on 14 November 2014 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
SIDHU v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 2841 [14 November 2014]
Introduction
[1] Amandeep Kaur Sidhu is an Indian woman aged 25. She arrived in New Zealand on a student visa on 1 September 2010. Within days of her arrival she married her husband, Mr Singh, an Indian national who at that time was unlawfully present in New Zealand because his visitor’s permit, now known as a visa, had expired more than seven years earlier.
[2] Ms Sidhu’s and Mr Singh’s marriage had been arranged by their families well before Ms Sidhu left India for New Zealand. Nine months before she arrived in New Zealand and seven months before she lodged her student visa application, a roka or pre-marriage ceremony was conducted which a large group of family and
friends attended.1 Jewellery, money and clothes were exchanged during the
ceremony although, for obvious reasons, Mr Singh was not present. There is some dispute as to the significance of a roka ceremony and whether it can be equated with the Western custom of an engagement.2 However, what is not disputed is that formal invitations were issued, between 300 and 500 guests attended, gifts were exchanged and following the ceremony Ms Sidhu and Mr Singh spoke to each other most days on the telephone.3
[3] When Ms Sidhu arrived in New Zealand she was wearing bridal henna on her hands and she had two wedding costumes packed in her luggage; one for herself and the other for Mr Singh. She also brought gifts of jewellery from her family to give to
her husband.
1 In Ms Sidhu’s affidavit she stated, “In my culture when two families meet and decide a tie between a girl and a boy but they are both not present at the time that is called roka, on the other when the girl and boy are in the presence of their parents and other relatives they exchange their rings with each other that is called engagement. A roka can in some cases can be cancelled, whereas an engagement is more binding.”
2 George Mongers’ Marriage Customs of the World: An Encyclopaedia of Dating Customs and
Wedding Traditions (2nd ed, ABC-CLIO, Santa Barbara, 2013) at 367 states:
The agreement for the marriage is followed by the engagement ceremony (roka) where the groom’s family goes to the bride’s family home and the two families exchange presents. The bride’s family give the groom an auspicious sum of money, and his family presents the bride to be with a sari and a gold chain. Money and presents are also exchanged between the parents of each family. The couple are then officially engaged and the wedding date is fixed.
3 Ms Sidhu said that prior to the roka the respective families would not permit the couple to speak to each other.
[4] Three days after her arrival in New Zealand she married Mr Singh in a traditional ceremony at a local Sikh temple to which a number of guests were invited. Following this she and Mr Singh departed for a short honeymoon to Rotorua before returning to Auckland to live together as husband and wife. Some months later the marriage was formalised at a registry office.
[5] When Ms Sidhu applied for her student visa from New Delhi in 2010 she knew Mr Singh was in New Zealand unlawfully. Using the services of a local agent Ms Sidhu completed the student visa application. The original form she completed has since been destroyed but her answers to the questions posed in the form are known because the information was entered into Immigration New Zealand’s (“INZ”) database. Section A is entitled, “Personal Details”. The explanatory note states that all applicants must complete this section. In subsection A11 she was asked to record her “Partnership Status”. The form listed seven options namely:
(a) married/in civil union; (b) separated;
(c) never married/never in civil union; (d) engaged;
(e) widowed; (f) partner; (g) divorced.
[6] Ms Sidhu ticked the “Never married/Never in civil union” box.
[7] Section B of the form dealt with “Contact Details”. The explanatory note for
this section also states all applicants must complete the section. In subsection B8
Ms Sidhu was asked to list the names and addresses of “friends, relatives or contacts
she had in New Zealand (if applicable)”. She left this section blank which lead the
INZ officer who later processed the application, to record “Family in NZ: N/A”.
[8] Following her arrival in New Zealand and her marriage to Mr Singh the couple began to live together. Ms Sidhu completed a National Diploma in Business.
[9] In November 2011 Ms Sidhu lodged an Expression of Interest to apply for residence. She disclosed that she was married. In February 2012 she applied for residence. Her application named her husband but did not include him in the application given his illegal immigration status.
[10] Five months later, in July 2011 INZ deported Mr Singh to India. INZ waived the usual five year prohibition on re-entry provided that Mr Singh met the costs of deportation which he did. On his return to India he applied for a temporary visa on the basis of his marriage to Ms Sidhu.
[11] To assess Ms Sidhu’s application for residency, Ms Sidhu and Mr Singh were separately interviewed about their relationship, the circumstances around their marriage and why it was that Ms Sidhu had completed the application form without making any reference to Mr Singh, either as a prospective husband or as someone she would be living with in New Zealand.
[12] Ms Sidhu explained that at the time she completed the form she did not consider they were engaged because they had not exchanged rings and Mr Singh had not been able to attend the roka ceremony. She acknowledged, however, that it was their intention to get married but insisted they were not engaged at the roka.
[13] In his interview in India, Mr Singh explained the circumstances of the couple’s arranged marriage, the roka and the fact that it was not until the roka had had been completed that he and Ms Sidhu were permitted by their respective families to speak with each other. He said that initially they would speak two or three times a week and after she applied for her visa they talked daily. Mr Singh acknowledged that his sisters had previously applied to enter New Zealand and did not declare him on their applications because they knew he was in New Zealand unlawfully.
[14] The interviews with Ms Sidhu and Mr Singh did little to alleviate INZ’s concerns that Ms Sidhu had provided false or misleading information or had withheld material information in the course of applying for her student visa. In January 2013 INZ advised Ms Sidhu of their concerns and invited her to provide any further information she might wish in response to their concerns stating that a failure to do so would result in INZ making a decision based on the available information and noting that it was unlikely the application would be approved based on the present information. They specifically recorded that providing false or misleading information or withholding information may make Ms Sidhu ineligible for residence.
[15] Through her solicitor, Ms Sidhu advised that she never intended to mislead INZ or to withhold information. She said her application had been handled entirely by an agent based in India and all information, including her possible marriage to Mr Singh, had been disclosed to the agent and that in preparing the application she
had done little more than sign a blank form which was then filled out by the agent.4
[16] The focus for INZ was whether Ms Sidhu should be granted residence under the skilled migrant category. In order to assess applications immigration officers are provided Immigration Instructions (“the Instructions”) which are promulgated by the Minister of Immigration under s 22 of the Immigration Act 2009. While the detail and application of those instructions is discussed more fully below, the Instructions provide that applicants who, in the course of applying for a visa and who have provided any false or misleading information or withheld material information will
not normally be granted residence until a character waiver is given.5 A further, and
related instruction, is that an immigration officer must not automatically decline a residence application on character grounds and must consider the surrounding
circumstances of the application to decide whether or not they are compelling
4 This explanation contrasts with Ms Sidhu’s interview with INZ on 4 December 2012. She was asked why she did not declare that she was engaged when she applied for a student visa. Her response was, “I was not engaged; he was not present, how could I tick on the ‘engaged box’.” No mention was made of the use of an immigration agent. Ms Sidhu said that a roka ceremony had taken place but it did not qualify as an engagement. Ms Sidhu’s legal advisors also referred to that part of the application relating to the details of a contact person in New Zealand, noting that it was an optional question only and there was no duty to complete it because it was answerable only “if applicable”. The letter emphasised the fact that there is a marriage prospect in the country did not mean that the applicant was not a genuine student and, indeed, the successful completion of her studies underscored this sincerity of her student visa application.
5 Instruction A5.25(i).
enough to justify waiving the good character requirement. Amongst the circumstances listed in the Instructions are whether the false or misleading information or the information withheld was significant and whether the applicant is able to supply a reasonable and credible explanation indicating that in supplying or withholding the information they did not intend to deceive INZ. There are also other considerations such as whether the applicant has any immediate family lawfully and permanently in New Zealand, whether the applicant has some strong emotional or physical tie to New Zealand and whether the applicant’s potential contribution to
New Zealand will be significant.6
[17] It was only the allegations around the provision of false information or the withholding of material information which concerned INZ.
[18] INZ refused to grant Ms Sidhu’s application for residence. She appealed to the Immigration and Protection Tribunal (“the Tribunal”) which dismissed her appeal. She now appeals to this Court.
Decision of the Tribunal
[19] In dismissing the appeal, the Tribunal in its decision of 29 May 2014 recited the facts and counsel’s submissions and, in particular, whether Ms Sidhu met the good character requirements justifying a character waiver. The submission made on Ms Sidhu’s behalf was that whether or not she intended to get married after her arrival in New Zealand was not a relevant consideration affecting her student visa application. The relevant question was whether she intended to study and otherwise met the relevant student visa obligations. It was submitted that marrying a person who was unlawfully in New Zealand at the time would not have affected Ms Sidhu’s ability to meet her visa conditions and while there was an obligation on her to provide relevant material information it was not possible for Ms Sidhu to know what information was relevant and necessary to declare other than to be guided by the questions on the form. It was submitted that Ms Sidhu could not be considered to
have intentionally withheld information because the nature of the relationship was
6 Instruction A5.25.1(a) and (b).
informal at the time she supplied the information and the categories in the form did not reflect her status.
[20] The Tribunal, without deciding whether a roka ceremony equated to an engagement, determined that there was sufficient evidence before it to demonstrate that Ms Sidhu and Mr Singh had a high level of commitment to each other which led her to arrive in New Zealand in preparation for a wedding which took place a few days later. The Tribunal referred to the events in India preceding Ms Sidhu’s departure as well as the events which followed her arrival.
[21] The Tribunal determined that because the application forms specifically required an applicant to declare their marital status she needed to declare her relationship with her future husband because it was a materially relevant aspect of the personal information. The Tribunal also referred to Ms Sidhu’s failure to declare her husband as a contact person.
[22] By not declaring her husband, the Tribunal found that Ms Sidhu deprived INZ of the opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. It noted that while her intention to marry her husband may not have made any difference to the outcome of her application, INZ needed to be able to factor this into their assessment. As a result, the Tribunal determined that Ms Sidhu had intentionally withheld information about her connection with her husband and their plans to marry.
[23] The next question was whether Ms Sidhu should have been given a character waiver under the Instructions. The Tribunal determined INZ’s decision was correct and had properly assessed the relevant factors and, in particular, the failure by Ms Sidhu to supply a reasonable and credible explanation to show she did not intend to deceive INZ by withholding information about the pending marriage to her husband and not declaring him on the form. This justified INZ’s decision not to grant a character waiver. INZ recorded its concerns that the outcome of Ms Sidhu’s visa application may have been different had she declared the true nature of her relationship with her husband and her intentions to marry in New Zealand.
[24] These factors were weighed against the fact that Ms Sidhu had successfully completed a New Zealand Diploma in Business and was working in skilled employment as a manager of a local Indian restaurant. Despite this and in terms of Instruction A5.2.1, INZ determined that her contribution to New Zealand could only be described as modest, she had no family members in New Zealand and her family and emotional ties to this country were not significant. Her husband had been deported from New Zealand and her familial nexus was to India.
[25] In all the circumstances the Tribunal agreed that INZ was correct when it determined that this combination of factors was not sufficiently compelling to justify a grant of a character waiver.
[26] After considering whether special circumstances under s 188(1)(f) existed which would warrant consideration by the Minister of Immigration the Tribunal found there was nothing in the appellant’s circumstances which, whether considered individually or cumulatively, presented as out of the ordinary or uncommon such as to warrant a referral to the Minister. The Tribunal dismissed Ms Sidhu’s appeal.
Present appeal
[27] This is an appeal on a point of law under s 245 of the Immigration Act 2009. Section 245 relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
[28] This Court’s powers on appeal are constrained by s 245(4) which provides:
(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—
(a) confirm the decision in respect of which the appeal has been brought; or
(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c) make such other orders in relation to the matter as it thinks fit.
…
[29] The limits of an appeal on questions of law are well settled. Obviously, matters such as a challenge to statutory interpretation fall within the ambit of the appellate Court’s jurisdiction. But where an appellate Court is invited to review the factual determinations of the first instance tribunal, the extent of the ability to do so is seriously constrained. In Taafi v Minister of Immigration Dobson J, after referring
to other cases where the principle has been observed,7 noted that only a limited
incursion into the factual arena is permitted where the Tribunal has either: 8
(a) come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion; or
(b)failed to have to drawn from unchallenged primary facts an inference favourable to the appellant, when such an inference is the only one reasonably open.
[30] More particularly what Dobson J noted the Court may not do under the guise of a question of law is concern itself with whether the Tribunal was right or wrong in
its conclusion on the factual merits of the case. The weight to be given to the
7 Mohamud v Minister of Immigration HC Wellington AP 21/98, 5 October 1998 per Wild J and Fisiipeau v Minister of Immigration HC Wellington CIV-2010-485-179, 15 May 2010 at [9] per Ronald Young J.
8 Taafi v Minister of Immigration HC Wellington CIV-2010-485-939, 28 September 2010 at [29]-[32].
assessment of factual considerations is for the Tribunal alone and not for consideration by the appellate Court on a question of law.9
[31] I also note the judgment of Potter J in Patel v Deportation Review Tribunal that appeals such as the present are not general appeals to which the principles laid down by the Supreme Court in Austin Nichols & Co Inc v Stichling Loadstar10 apply.11
[32] Ms Longdill for the respondent also referred me to Minister of Immigration v Zhang where Mr Zhang applied to the High Court under s 245(1) for leave to appeal the Tribunal’s decision as being erroneous in point of law. 12 This Court dismissed Mr Zhang’s appeal on the three questions of law on which leave was granted but purported to allow the appeal on the grounds of a procedural error for failing to give reasons. The Court of Appeal concluded the Judge had no power to determine a question for which leave had not been granted.
[33] As this is an appeal on a point of law there is limited scope to challenge the Tribunal’s findings of fact and this Court is constrained in its consideration to the grounds of appeal on which leave was granted.
[34] There are four grounds of appeal which allege the Tribunal erred in law. These can be simply stated:
(a) materiality: the failure to disclose an intention to marry was not a material withholding of information;
(b)intention: the Tribunal erred in its finding that the failure to disclose material information was intentional and therefore a breach of the
good character requirements had occurred;
9 Refer to Nicholls v District Council of Papakura [1998] NZRMA 233 at 235; Auckland City Council v Wotherspoon [1991] NZLR 76 at 85-86. Specifically in the immigration jurisdiction, see Butler v Removal Review Authority [1998] NZAR 409, per Giles J. See too Bryson v Three Foot Six [2005] NZSC 34, [2005] 3 NZLR 721 at [25]-[26].
10 Austin, Nichols & Co Inc v Stichling Loadstar [2007] NZSC 103, [2008] 2 NZLR 141.
11 Patel v Deportation Review Tribunal HC Auckland CIV-2008-404-8225, 16 June 2009 at [10].
12 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [27].
(c) irrelevant considerations: the Tribunal erred in its determination that
INZ’s decision was correct was based on irrelevant considerations;
(d)correctness of the character waiver assessment: the Tribunal failed to consider correctly whether the applicant was deserving of a character waiver even if she had intentionally withheld material information.
[35] On 2 September 2014 Winkelmann J granted Ms Sidhu leave to appeal the
Tribunal’s decision under s 245(1) of the Act.
First error of law: materiality
[36] Mr Ryken, for Ms Sidhu, in helpful and comprehensive submissions, argues that the Tribunal erred in law when it held that the failure to disclose an intention to marry was a material withholding of information on a student visa application. He submits that the visa application was completed honestly. The form contained no question about marriage intentions but despite this the Tribunal inferred a duty on Ms Sidhu to provide that additional information. He further submits that the Tribunal erred when it held that the failure to declare an intention to marry was materially relevant to the student visa application.
[37] Mr Ryken submits that information which relates to the purpose of entering the country will be relevant and material where the intention to enter has been misstated or where the stated intention conflicts with or is inconsistent with the real or primary purpose for entering the country. By way of an example he referred to an immigrant claiming that the purpose of their entry into the country was for business when the real purpose was to claim refugee status.13 In such a case (and the other examples he cited) there is a clash between the claimed intention and the real intention. Had the real intention been disclosed it might have resulted in a different
outcome. He contrasts that example with the circumstances of the present case where the issue is whether marriage between an overstayer and an incoming student
clashes with the stated intention of study (and likely compliance with student visa
13 See for example Bugdaycay v Secretary of State for the Home Department [1987] AC 514, [1987] 1
All ER 940 (HL).
conditions). He submits that marriage in these circumstances is so barely relevant it cannot be material.
[38] He submits that Ms Sidhu’s marriage to Mr Singh gave her no future right to stay permanently and so she was placed in no different position in terms of any prospects she might have through study, thence work and thence residence (if that was what she wished). He submits it is hard to conceive how her intention to marry an overstayer could possibly have been of any relevance to the determination of whether or not she intended to study, whether she had the right aptitude to study and was likely to comply with the various conditions of her visa, particularly the requirement to leave the country before her visa expired.
[39] He submits that if Ms Sidhu was to be the future “vehicle” for her husband’s later lawful residence in this country this would militate in favour of compliance so as not to compromise Mr Singh’s chances of returning to New Zealand and seeking residence.
[40] Mr Ryken submits that Ms Sidhu was entitled to have her case considered on the basis of her conduct including the fact that she had partly completed a BA degree in India, had an appropriate level of proficiency in the English language and was in possession of sufficient funds. She was entitled not to be prejudiced by the past actions of her future husband. He submits there is no rule in the immigration context that requires an applicant to respond to questions on an application form with a level of candour equivalent to the insurance law precept of uberriamae fidei. Neither is there a requirement to provide information relating to all of the reasons why a person might wish to visit or study in a particular country. There may be several.
[41] Mr Ryken then referred to an early articulation of the materiality rule in the English immigration context found in the decision of Lord Denning in R v Secretary of State for the Home Department, ex-parte Jayakody.14 Mr Ryken described the case as “probably a high water mark” and did not press for an interpretation of
materiality which required the withholding of material information to be such that
14 R v Secretary of State for the Home Department, ex-parte Jayakody [1982] 1 All ER 461 (CA).
had it been disclosed the application would have been declined or probably declined in terms of Jayakody.
[42] However, he submits on the authority of Jayakody and other English authorities15 there is no duty of candour of the part of an immigrant and expressed disapproval of any suggestion that the principle of uberriamae fidei should apply in the immigration context. He submits that this should also be the starting point in New Zealand.
[43] Mr Ryken also referred to the position in Australia submitting, on the basis of the authorities cited,16 that the equivalent of the English test of materiality applies there.
[44] In relation to the Canadian position Mr Ryken submits there is requirement for a representation to be decisive or determinative before it could be considered to be material. It must be effective as a causative element and important enough to affect the process.17 He submits that the Canadian approach is consistent with the other jurisdictions discussed above.
[45] In summary, the essence of Mr Ryken’s submission on the question of materiality is that there is no reason why an intended marriage to an overstayer conflicts with the likelihood of study, attendance at classes, or future compliance. It cannot be said that the non-disclosure of Ms Sidhu’s intention to marry Mr Singh, an overstayer, would have lead to a different decision to grant her a student visa. Indeed, he submits, it is probable that the opposite is the case.
Relevant law
[46] The obligation to provide information to INZ of all relevant facts arises independently of the application form. Its origins lie in obligations contained in the
15 R v Secretary of State for the Home Department, ex-parte Khawaja [1984] AC 74.
16 Singh v Minister for Immigration [2006] FMCA 1163; Sandoval v Ministry of Immigration and
Multicultural Affairs (2001) 194 ALR 71, [2001] FCA 1237 at [42].
17 Afzal v Canada (Minister of Citizenship and Immigration) [2012] FC 426.
Act. At the time Ms Sidhu applied for her student visa s 34G of the Immigration Act
1987 was the relevant provision.18 It states:
34GObligation to inform all relevant facts, including changed circumstances
(1) Every person who applies for any type of visa, permit, or exemption under this Act has the obligation to inform an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—
(a) may affect the decision on the application; or
(b) may affect a decision to grant a permit in reliance on the visa for which the application is made.
…
[47] This section was inserted by the Immigration Amendment Act 1999. The Select Committee report during its passing through Parliament noted the following in relation to the new section:
We are advised this clause ensures that any decision to … grant … a residence visa or permit is made with regard to all material facts in an individual case, including any circumstances that may have changed following an expression of interest. There is a strict obligation to properly inform officers of these material facts. Any failure to do so would not, however, result in the automatic decline of an application. … In every case an officer must still consider whether declining the application … is warranted. This involves an assessment of all the circumstances of the case including the materiality of the omission and whether there was a reasonable excuse. There are strong policy reasons which sit behind the amendment and, in particular, the ‘strict obligation to properly inform officers of material facts’. The prospective immigrant possesses all the information in relation to the personal circumstances and relationships. These circumstances can change. In determining whether or not to grant a visa an immigration officer undertakes a range of risk assessments including the assessment of whether, if the application is allowed, the applicant will contravene the conditions of their visa, overstay and become a burden on the compliance regime.
(Emphasis added)
[48] As Ms Longdill submits the analogy with uberriamae fidei is not misplaced. In the insurance context an insured possesses the information about themselves and
18 The relevant equivalent provision under the Immigration Act 2009 is s 58. It is similarly expressed to its predecessor.
their circumstances. Much of that information is not readily available to the insurer. In assessing risk the insurer is required to rely on the insured’s candour by reason of the information discrepancy existing between the parties. It thus follows that the immigration officer processing the application must possess all the relevant information in order for them to properly examine the risks, weigh them and make a considered decision on the available information as to whether to grant a visa or not.
[49] The comments of the Select Committee sit in sharp contrast to the judicial observations found in some of the English authorities cited by Mr Ryken. This is almost certainly because their Lordships in Khawaja (and earlier in Zamir) were analysing the meaning of the Immigration Act 1971 (UK) to determine the extent of an intending entrant’s obligation. Their speeches make it clear that in determining that the UK’s Immigration Act did not impose a duty of candour they were drawn to that interpretation by the wording of the UK Act. This can be seen from the speech
of Lord Scarman:19
The Immigration Act does impose a duty not to deceive the immigration officer. It makes no express provision for any higher or more comprehensive duty; nor is it possible in my view to imply any such duty. Accordingly I reject the view that there was a duty of positive candour imposed by the immigration laws and that mere non-disclosure by an entrant of material facts in the absence of fraud is a breach of the immigration laws.
[50] The UK’s Immigration Act requires an applicant to answer questions posed. It imposes no duty not to deceive officials. More importantly, in the context of the present case, it does not include any provision equivalent to s 34G of the Immigration Act 1987 or its successor.
[51] I accept Ms Longdill’s submission that New Zealand immigration law has imposed a duty of candour on applicants since 1998. It is what s 34G requires of an applicant. The duty applies not only to applications for visas but also creates an enduring and continuing duty to disclose any material change in circumstances after
the application is made.
19 R v Secretary of State for the Home Department, ex-parte, above n 15, at 107 to 108.
[52] The next question is whether the omissions on the student visa application were material. Counsel advise that the issue of materiality has not previously been discussed by a New Zealand Court.
[53] As noted earlier, Mr Ryken submits that the Tribunal erred when it found that by not declaring her future husband, Ms Sidhu deprived INZ of the opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. He also submits that the Tribunal was wrong when it concluded that while Ms Sidhu’s intention to marry her husband may not have made any difference to the success of her visa application, INZ needed to be able to factor it into the assessment.
[54] It is noteworthy that the test in Jayakody has since been rejected by the English Courts. In Durojaiye v Secretary of State the question for the Court of Appeal was whether a foreign student’s misstatement of his hours of “organised day time study” per week was material. 20 The Court found this misstatement to be material:21
The fact is that the question which the Home Office asked Mr Durojaiye was, what his hours of attendance had been; and that was the question which he answered. Plainly his answer was material in the sense that it was likely to influence their decision whether to find that he was qualified under paragraph 22. If his answer had been, ‘I’ve attended for less than 15 hours per week, but I have studied at home as my course required’, it is likely, as Mr Cotran has accepted, that more questions would have been asked and further enquiries made. It follows in my judgment that the representations as to hours of attendance made in February 1987 and in August 1987 were material.
[55] More recently the English Courts have rejected the notion that materiality in this context can mean that even if the information had been provided to the authorities it would have made no difference to the result. In other words irrespective of the falsehood or omission the application would nonetheless have been granted. In R v Secretary of State for the Home Department, ex-parte Yasim
Latham J said: 22
20 Durojaiye v Secretary of State for the Home Department [1991] Imm AR 307.
21 At [5].
22 R v Secretary of State for the Home Department, ex-parte Yasin [1996] Imm AR 62.
It follows, inferentially and necessarily, that if, in the circumstances of the particular case, the information which was the true information would have resulted in enquiries having to be made by the immigration authorities in order to determine whether or not to grant leave to enter, any falsehood which avoids that consequence is a material falsehood.
In other words, one test as to whether or not the falsehood is a material, as opposed to an immaterial, falsehood is the question whether or not it was the sort of falsehood of which had the truth been known, would have resulted in significant enquiries being made. It does not, as Laws J said, avail the applicant if it is possible that the consequence of those enquiries might be that he would nonetheless have been granted leave to enter in the same capacity or some other capacity to that with which he was in fact granted.23
[56] The English Courts have applied the test formulated in Durojaiye on numerous other occasions.24 The same test is also used in Northern Ireland.25
[57] As accepted by Mr Ryken the test in Canada is similar. In commenting on a provision which prevents entry to Canada for an applicant who has withheld material information the Canadian Federal Court said:26
Section 40(1)(a) is to be given a broad interpretation in order to promote its underlying purpose … The objective of this provision is to deter misrepresentation and maintain the integrity of the immigration process – to accomplish this objective the onus is placed on the applicant to ensure the completeness and accuracy of his or her application. Section 40(1)(a) is broadly worded to encompass misrepresentations even if made by another party, without the knowledge of the applicant … The applicant cannot misrepresent or withhold any material facts that could induce an error in the administration of the Act.
…
I agree with the respondent that to be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The False Document was thus clearly material because the application could not have been processed without it.
23 See too R v Secretary of State for the Home Department, ex-parte Ming [1994] Imm AR 216; also
Kaur v Secretary of State for the Home Department [1998] Imm AR 1.
24 See e.g. R v Secretary of State for the Home Department ex parte Aflakpui QB CO/556/98, 24
February 1998: “The point now taken by Mr Glarr on behalf of his applicant isa simple one. There was no question asked; there was thus no answer given that was false; there was no duty of candour and accordingly it was wrong to treat the applicant as an illegal entrant. The difficulty with that submission is to be found in a decision of the Court of Appeal, to which I have been referred by Mr Maclean for the Home Office, Durojaiye v Secretary of State [1991] Imm AR 307.”
25 On the application of Ofordu v Secretary of State for the Home Department [2012] NICA 9; Alam, re Judicial Review [2008] NIQB 27.
26 Afzal v Canada (Minister of Citizenship and Immigration), above n 17,at [24]-[26].
Relevant Instructions
[58] The immigration officer is required to determine whether the person applying is a bona fide applicant.
[59] Chapter E5.1 of the Instructions assists in this discussion. It provides as follows:
E5.1 Definition of “bona fide” applicant
A bona fide applicant for temporary entry is a person who:
(a) genuinely intends a temporary stay in New Zealand for a lawful purpose; and
(b) in the opinion of an immigration officer is not likely: (i) to remain in New Zealand unlawfully; or
(ii) to breach the conditions of any visa granted; or
(iii) to be unable to leave or be deported from
New Zealand.
[60] Every person seeking temporary entry into New Zealand must meet the definition of a bona fide applicant. Thus under this Instruction every immigration officer is required to make an assessment as to the genuineness of the applicant’s intention to stay temporarily in New Zealand for a lawful purpose and that the person is not likely to remain in New Zealand unlawfully or to breach the conditions of any visa granted.
[61] These are all factors which INZ’s officers were required to take into account when assessing Ms Sidhu’s application.
[62] Furthermore, Instruction E5.10 sets out the factors which an immigration officer must take into in the bona fide applicant analysis. The Instruction is set out below:
E5.10 Determining whether an applicant is a ‘bona fide applicant’
a. When determining whether or not an applicant for temporary entry or entry permission is a bona fide applicant (see E5.1), immigration officers must take into account:
i. any evidence of genuine intent and lawful purpose submitted by the applicant (see E5.5.1); and
ii. the ability of the applicant to leave or be deported from New Zealand to their country of citizenship, including but not limited to:
o any restrictions on the deportation of the applicant to their country of citizenship, including any restrictions the New Zealand Government has self-imposed;
o the documentation required by the applicant to return to their country of citizenship; and
iii. any relevant information held about previous applications, including but not limited to:
o whether the applicant has previously overstayed;
o whether the applicant has previously breached visa conditions;
o whether the application has dependents who are unlawfully in New Zealand; and
iv. the personal circumstances of the applicant, including but not limited to:
o the strength of any family ties in the home country and
New Zealand;
o the nature of any personal, financial, employment or other commitments in the home country and New Zealand;
o any circumstances that may discourage the applicant from returning to their home country when any visa expires.
b.
i. Having been taken into account all matters in paragraph (a) above that are relevant to the particular case, the type of temporary entry class visa applied for, and any other relevant information, immigration officers must then determine whether or not an applicant is a bona fide applicant (see also E7.10).
Where (a)(ii) applies, immigration officers should consider whether there are compelling personal reasons for the applicant to be granted a visa or entry permission to New Zealand.
Analysis
[63] In accordance with the English and Canadian case law, if the omissions were relevant to the factors set out above that the immigration officers must consider, or would have resulted in further questions being asked to determine one of the above factors, irrespective of whether the information will have changed the outcome, it is relevant.
[64] The Tribunal summarised the position in the following way:
[43] By not declaring your husband, the appellant deprived Immigration New Zealand of an opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. While her intention to marry her husband may not have made any difference to the outcome, Immigration New Zealand needed to be able to factor it into the assessment.
[65] Ms Longdill described this passage as “a strikingly accurate application of the correct legal test” particularly given the Tribunal was not given the English and other authorities discussed above.
[66] As the Tribunal observed, Ms Sidhu’s failure to disclose her relationship with Mr Singh deprived INZ of the opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. E5.10(a)(i) requires the immigration officer to take into account any evidence of genuine intent and lawful purpose submitted by the applicant. In the present case, while Ms Sidhu disclosed the lawful purpose of study in New Zealand, she did not disclose the fact that she was also travelling to New Zealand to meet, marry and cohabit with Mr Singh. Furthermore, E5.10(4) requires the immigration officer to take into account the personal circumstances of the applicant, including but not limited to, the strength of any family ties in the home country and New Zealand, the nature of any personal, financial, employment or other commitments in the home country and New Zealand and any circumstances which might discourage the applicant from returning to their home country when any visa expires. The existence of Mr Singh and Ms Sidhu’s relationship with him were all factors engaged by the requirement in E5.10(a)(iv).
[67] Ms Longdill submits the claim that the likelihood of the success of Ms Sidhu’s application would not be affected by her intention to marry, misses the point. She submits that in Ms Sidhu’s case the immigration officer might well have granted her a limited visa for the purpose of completing her course because it was assessed that there was a risk she may remain in New Zealand beyond the expiry of the temporary visa because she was coming to New Zealand to marry and live with a man who had been unlawfully in New Zealand for seven years.
[68] A limited visa issued under s 82(1)(b) of the Act, in contrast to a temporary visa such as a student visa, is a more restrictive permit. It may be issued when an immigration officer perceives a particular risk. A limited visa permits the imposition of strict conditions. In Ms Sidhu’s case, had the INZ known she was coming to New Zealand to marry someone who had been an overstayer for more than seven years, they might well have granted a limited visa which would have allowed Ms Sidhu to complete her course but would have required her to leave the jurisdiction at a nominated time.
[69] Furthermore, Ms Sidhu’s stay in New Zealand was based on the fact her father was providing the funds to support her. INZ was deprived of the knowledge that in fact she would be living with her husband and possibly being financially supported by him also. Thus there existed the risk that the conditions of entry might have been different had this fact been known to INZ. They were deprived of that opportunity by the way Ms Sidhu completed the form. Thus the correct emphasis is not on whether it would have, in fact, made a difference but rather on the deprivation of the opportunity to undertake a further fuller analysis of risk.
[70] In any event, it must have been relevant to an immigration officer’s assessment to know the applicant intended to marry and live with somebody who had breached his statutory obligation to leave New Zealand and to remain here unlawfully. That Mr Singh managed to evade the immigration authorities for more than seven years evinces a level of determination and resourcefulness which must be relevant to an assessment of whether his wife posed a similar risk of remaining in the country after her visa expired in order to continue her life with her husband.
[71] Overall I am satisfied that the Tribunal was correct to find that the omissions were material.
Second error of law: intention
[72] Mr Ryken submits that the Tribunal erred in holding that the failure to disclose material information was intentional and therefore a breach of the good character requirements. He submits that it was not reasonable to infer Ms Sidhu intended to mislead when she completed the “Partnership Status” question on the student visa application form. He also submits that no reasonable inference of an intention to mislead arises out of the fact that the information concerned personal circumstances.
[73] The question of intention is directly relevant to Immigration Instruction
A5.25.1(b), the relevant aspects of which are reproduced below:
b.An immigration officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:
…
iii. if applicable, the significance of the false, … provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ;
…
v. whether the applicant has any immediate family lawfully and permanently in New Zealand;
vi. whether the applicant has some strong emotional or physical tie to New Zealand;
vii. whether the applicant’s potential contribution to
New Zealand will be significant.
[74] The relevant portion of the Tribunal’s decision records as follows:27
27 At [44].
The Tribunal finds that the appellant intentionally withheld information about her connection with her husband and their plans to marry.
[75] Ms Longdill submits that this is not an error of law and that the finding by the
Tribunal that the appellant intentionally withheld information is a finding of fact.
[76] As discussed earlier, it is well established that this Court may not interfere with a decision where there is a proper evidential basis available to support the Tribunal’s findings. A factual finding will only constitute an error of law for the reasons already discussed above.28 It is only when the Tribunal has come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion or it failed to draw from unchallenged primary facts an inference favourable to the appellant when such inference is the only one reasonably
open that the decision may be set aside. Issues of weight are matters for the
Tribunal.
[77] In my view there was an ample evidential foundation to justify the Tribunal coming to the decision that Ms Sidhu’s omissions were intentional. The following facts support the inference that the omission was deliberate:
(a) First, there is the coincidence that the two boxes on the application form which might have alerted INZ to Ms Sidhu’s connection with Mr Singh were either incorrectly completed or left blank. The likelihood that Ms Sidhu completed the marriage particulars part of the box in the sincere belief that she was not engaged and no other box conveniently accommodated her status needs to be assessed in the light of her further failure in the same application to complete box B8 as it relates to her connections in New Zealand. B8 is very broadly expressed and, undoubtedly, would have captured Mr Singh’s name, address and relationship to Ms Sidhu if it had been completed.
(b)Secondly, as the Tribunal noted, Ms Sidhu gave conflicting accounts to INZ on the question of whether she or her immigration agent in
New Delhi filled in her application form. In the first account given to
28 Taafi v Minister of Immigration, above n 8.
the immigration officer interviewing her in December 2012 she described why she did not complete the “Partnership Status” box. She made no mention of the agent in that context. However, in her later explanations, following advice that her residence application was in peril, she shifted the responsibility to her agent and suggested that he had completed the form and she essentially signed it blank. This was despite the form explicitly stating in Section A that all applicants are to complete that section as well as directions elsewhere in the form to the same effect.
(c) Thirdly, Mr Singh’s sisters had also previously applied to enter New Zealand and did not declare Mr Singh in their own applications because they knew he was here unlawfully. Although the Tribunal did not expressly take this fact into account in determining Ms Sidhu’s intention, in my view this was another matter which would have added to the factual matrix supportive of the inference of intention.
Third error of law: irrelevant considerations
[78] Mr Ryken relies on the Tribunal’s acknowledgement that the information which Ms Sidhu failed to disclose might not have made a difference. He submits the Tribunal should have factored this finding into its assessment. More particularly, he submits that although the Tribunal concluded that the omissions were material it did not say why.
[79] The Tribunal concluded that Ms Sidhu in not declaring her husband deprived INZ of an opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. There was no need for the Tribunal and go further and identify with greater specificity why the omissions were material. It was INZ’s loss of opportunity which flowed from Ms Sidhu’s omissions which was central to the question of materiality.
[80] As Mr Ryken submits, this ground is an alternative expression of the issue in the first ground and the meaning of materiality.
[81] This has already been dealt with in this judgment as has the issue of how, in fact, INZ was deprived of the opportunity for a full assessment and what other enquiries might have been undertaken.
[82] For the reasons set out above and in particular in relation to the first ground of appeal, I have determined that the omissions were material and that the Tribunal applied the right test on the facts.
Fourth error of law: correctness of waiver assessment
[83] Mr Ryken submits that in the alternative to appeal grounds 1 to 3 the Tribunal erred in its consideration that Ms Sidhu was deserving of a character waiver even if she had intentionally withheld material information. He submits that the Tribunal failed to apply or properly interpret the good character waiver rules appropriately and, in particular rule A5.25.1(iii) of the Instructions and failed to apply or consider:
(a) whether the appellant’s explanation as to non-materiality and the withholding of information was unintentional, was at least plausible and credible;
(b)that the withholding of information had little or no lasting consequence because Ms Sidhu continued to study whilst married and did not breach any immigration requirements;
(c) the matter was not of such significance so as to warrant a refusal to consider the appellant to be a good character;
(d) Ms Sidhu’s alleged failure was so insignificant that the decision to
refuse the character waiver amounts to an error of law.
[84] In large part, this ground reflects also Mr Ryken’s submissions on materiality
and intention.
[85] After setting out A5.25 of the Instructions (A5.25 and A5.25.1) the Tribunal focused on Instruction A5.25(i) which provides that applicants would not normally be granted a residence class visa, unless granted a character waiver, if they:
In the course of applying for a New Zealand visa … made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information;
[86] I have already dealt with the Tribunal’s finding that Ms Sidhu withheld
material information when applying for her student visa.
[87] However, under the Instructions, Instruction A5.25.1 requires an immigration officer to consider the surrounding circumstances of the application for a residence class visa to decide whether or not they are compelling enough to justify waiving the good character requirement. The Instruction sets out the circumstances which an immigration officer must consider. The relevant parts of Instruction A5.25.1 are set out below:
A5.25.1 Action
a. An immigration officer must not automatically decline residence class visa applications on character grounds.
b. An immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:
…
iii. if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ;
iv. how long ago the relevant event occurred;
v. whether the applicant has any immediate family lawfully and permanently in New Zealand;
vi. whether the applicant has some strong emotional or physical tie to New Zealand;
vii. whether the applicant’s potential contribution to New
Zealand will be significant.
[88] The Tribunal dealt with each of these factors in reviewing INZ’s refusal to
give Ms Sidhu a character waiver.
[89] On the question of the significance of the information withheld and whether the applicant was able to supply a reasonable and credible explanation that in withholding the information she did not intend to deceive INZ the following factors are relevant:
(a) First, the information withheld was significant and, plainly Ms Sidhu was unable to supply a reasonable and credible explanation that in withholding the information she did not intend to deceive INZ.
(b)Secondly, although Ms Sidhu met all the other requirements of the skilled migrant category her contribution to New Zealand could only be described as modest.
(c) Thirdly, Ms Sidhu had no family members in New Zealand and her family and emotional ties to New Zealand were not significant. Her husband had been deported from New Zealand. Her familial nexus was therefore to India and while she had taken some steps towards settling in New Zealand there was nothing to suggest she could not return to India.
[90] Ms Sidhu’s application was always unlikely to meet the test of compelling circumstances in Instruction A5.25.1(b), particularly having regard to her limited ties with New Zealand.
[91] I also note that the Tribunal’s discussion of “special circumstances” in terms of s 188(1)(f) of the Act involved similar considerations with the Tribunal determining that as with the good character waiver assessment the test of special
circumstances was not met by Ms Sidhu.29
29 At [68].
Conclusion
[92] For the reasons set out above I am satisfied that the Tribunal applied the
correct legal test as to what amounts to “material information”.
[93] The test formulated by the Tribunal is both intuitive and legally sensible. For the purposes of A5.25(i) “material information” is “information that was likely to influence the immigration officer’s decision in considering the applicant’s application for a New Zealand visa”. It is not necessary that the information withheld, had it be known to the immigration officer would have or would likely to have resulted in a different decision. The real question must be, as the Tribunal found it to be, that in withholding information, in this case by not declaring her husband, the applicant deprived INZ of the opportunity to undertake a full assessment of her application and make a decision based on her real circumstances. I am also satisfied that there was a proper foundation for the factual finding made by the Tribunal in relation to Ms Sidhu’s intention.
[94] Finally, I am satisfied that the Tribunal’s analysis of INZ’s character waiver
assessment was properly undertaken.
Result
[95] The appeal is dismissed.
[96] I reserve the question of costs and invite submissions if the parties cannot agree. The respondent is to file and serve its memorandum in fourteen working days from the date of this judgment. The appellant is to serve and file its memorandum in
reply five working days thereafter.
Moore J
Solicitors:
Ryken and Associates, Auckland
Crown Solicitor, Auckland
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