Pal v Minister of Immigration

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 16 August 2013
• Neutral Citation: [2013] NZHC 2070
• Docket Number: CIV-2012-404-007718
• Court: High Court
• Date: 16 August 2013

Under the Immigration Act 2009

In the Matter of an application for leave to appeal

BETWEEN

Jag Pal Jag Pal

First Applicant

Gian Kaur Gian Kaur

Second Applicant

and

The Minister of Immigration

Respondent

Under the Judicature Amendment Act 1972

In the Matter an application for judicial review

BETWEEN

Jag Pal Jag Pal

First Plaintiff

Gian Kaur Gian Kaur

Second Plaintiff

and

The Immigration and Protection Tribunal

First Defendant

The Minister of Immigration

Second Defendant

[2013] NZHC 2070

CIV-2012-404-007718

CIV-2012-404-007720

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for leave to appeal and application for judicial review in respect of decisions relating to the deportation of the plaintiffs under s158(1)(b)(ii) Immigration Act 2009 (“IA”) (residence class visa — deportation if procured through fraud, forgery, false or misleading representation, or concealment of relevant information) — Immigration and Protection Tribunal dismissed the applicants' appeal against Minister's deportation order — plaintiffs were married couple who fraudulently misstated that they had only two children instead of six children — claimed applications had been prepared by an agent and that they were both illiterate — whether or not the applicants knowingly committed fraud by providing incorrect information — whether or not the wife's position had to be considered separately from her husband — whether under s158(1)(b) IA, presence of mens rea or knowledge was necessary to attribute fraud.

Counsel:

FC Deliu for Applicants/Plaintiffs

DJ Perkins for Respondent/Defendant

JUDGMENT OF Asher J

Table of Contents

	Para No
Introduction	[1]
The statutory framework	[6]
The fraud issue	[16]
The evidence of fraud	[22]
Ms Kaur's separate position	[34]
The wider fraud	[40]
Under s 158(1)(b) is actual fraud necessary?	[45]
The appeal on humanitarian grounds	[55]
The public interest	[63]
Judicial review	[68]
Conclusion	[75]
Result	[78]

Introduction

1 Jag Pal Jag Pal and Gian Kaur Gian Kaur are a married couple born in India in 1942 and 1944 respectively. They have six children. They lived in India until they came to New Zealand and settled here with two of their children. They did so on the basis of residence visas granted on 16 July 2004.

2 On 10 August 2011, the Minister of Immigration ordered the applicants' deportation under s 158(1)(b)(ii) of the Immigration Act 2009 (the Act) on the grounds that Mr Pal and Ms Kaur (the applicants) procured their resident class visas through fraud, forgery, false or misleading information or concealment of relevant information.

3 The applicants appealed. On 22 November 2012, the Immigration and Protection Tribunal (the Tribunal) dismissed their appeals. 1

4 The applicants seek leave to appeal to this Court against that decision, submitting that the Tribunal erred in its application of the law and the processes that it followed. They have also filed judicial review proceedings that are to be determined together with the appeal.

5 Before considering the applicants' submissions, it is necessary to set out the relevant statutory framework.

The statutory framework

6 Part 6 of the Act relates to liability for deportation. One of the grounds for deportation is where a visa or citizenship has been obtained or held by forgery or other listed matters. Section 158(1)(b) sets out what happens where the Minister determines that a visa was procured in this way. Under s 167, residence class visa holders remain liable for deportation for a period of 10 years.

7 Part 7 of the Act relates to appeals, reviews and other proceedings including appeals from deportation orders. Section 201(1) gives the right to residents whose liability for deportation arises under s 158(1)(b) to appeal to the Immigration and Protection Tribunal, a tribunal established under s 217 of the Act to determine appeals against, amongst various decisions, liability for deportation.

8 The Tribunal is a specialist body that has the role of deciding appeals by making findings of fact, applying the relevant law, and making a determination. 2 In carrying out its role, the proceedings of the Tribunal in any particular case may be of an inquisitorial or adversarial nature, or both, as the Tribunal thinks fit. 3

9 Under s 202(c) the Tribunal must allow the appeal in certain circumstances:

202 Grounds for determining appeal on facts

The Tribunal must allow an appeal against liability for deportation on the facts where,-

…

• (c) in the case of an appellant liable for deportation under section 158(1)(b), the Tribunal is satisfied, on the balance of probabilities, that-

  • (i) the resident visa or permanent resident visa or entry permission concerned was not procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

  • (ii) the resident visa or permanent resident 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:

10 The onus of showing that there should not be liability for deportation is therefore on the appellant. Section 203 provides that a person who is entitled and wishes to appeal both on the facts and on humanitarian grounds must lodge both appeals together. Section 207 sets out the grounds determining a humanitarian appeal. Section 207(1) 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.

11 Under ss 209-211 the Tribunal may make orders as are considered necessary in allowing any appeal, and may order the grant of a visa.

12 Section 226(1) records that it is the responsibility of an appellant or affected person to establish his or her case or claim, and it is the appellant who must ensure that all information, evidence and submissions relied on in support of the appeal are provided to the Tribunal. The Tribunal must provide an oral hearing in the case of an appeal against liability for deportation by a resident or permanent resident. 4

13 Under s 245, there is an ability to appeal to the High Court on a point of law by leave. Section 245(3) provides:

245 Appeal to High Court on point of law by leave

• …

• (3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made 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 ought to be submitted to the High Court for its decision.

14 So appeal is on a point of law only, and the Court must consider whether because of its general or public importance or other reasons, leave should be granted. On the appeal, the High Court must determine the question or questions of law in the proceedings and may then confirm the decision, remit the matter back to the Tribunal, or make such other orders as it thinks fit. 5

15 Section 247 sets out the position where a person intends to both appeal against a decision of the Tribunal, and bring review proceedings in respect of the same decision. Unusually, the dual pathways of challenging a Tribunal decision are specifically recognised. The applications should be lodged together, and the High Court must endeavour to hear both matters together. 6

The fraud issue

16 It was central to the submissions of Mr Deliu, who represented the applicants, that there was an insufficient basis for the determination of the Minister and the Tribunal that the application forms for the applicants' residence visas contained a fraudulent misstatement of fact. He asserted that there was “no mens rea”. In a related submission, he asserted that there had been a failure to focus on the position of Ms Kaur separately from Mr Pal, and that Ms Kaur could not be said to have known of the misstatement.

17 These issues were relevant to both the appeal and judicial review challenges. Mr Deliu couched his submissions on the facts on the basis that the failure to properly determine the fraud issue was an error of law. In judicial review terms, he

argued on the basis that there was no evidence of fraud, and consequently the decision that there was fraud was unreasonable and irrational

18 While recognising that this is not a rehearing appeal and that a challenge to the facts can have only a limited role, I propose to deal with this factual issue of fraud first as it lies at the heart of much of the applicants' submissions. Because the factual issue under s 202 was not considered by the Tribunal because of the concession it had received, I will deal with the factual issues in detail.

19 Under s 202(c)(ii), the Tribunal had to allow the appeal against liability for deportation on the facts if it was satisfied on the balance of probabilities that the resident visa or permanent resident visa had not been granted to the applicants on the basis of a fraud, forgery, false or misleading representation, or concealment of relevant information.

20 It has throughout been common ground that the applicants would not have been granted residence if they had correctly disclosed the details of their six children. As I understand it, this is because as a result of their having four other children in India and...