Pal v Minister of Immigration

JurisdictionNew Zealand
CourtHigh Court
JudgeAsher J
Judgment Date16 Aug 2013
Neutral Citation[2013] NZHC 2070
Docket NumberCIV-2012-404-007718

[2013] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-007718

CIV-2012-404-007720

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
Counsel:

FC Deliu for Applicants/Plaintiffs

DJ Perkins for Respondent/Defendant

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.

The issues were: whether the applicants knowingly committed fraud; whether K's position had to be considered separately from her husband as she was a derivative applicant and his fraud should not extend to her; whether under s158(1)(b) the presence of mens rea or knowledge was necessary to attribute fraud; whether when considering the appeal on humanitarian grounds the Tribunal had wrongly failed to consider disjunctively the unjust or unduly harsh test; and, whether there were exceptional circumstances of humanitarian nature.

Held: It was unlikely the doctor who was approved by the Immigration Service would have wilfully included false information unless it had come from the applicants. While there was no reason to reject K's claim to illiteracy, P's claim was to be treated with scepticism as he was an electrician in India and had signed the application. Even accepting their illiteracy, any responsible person in signing an application concerning such an important matter would have sought a translation. There was no credible explanation by the applicants as to how it came about that these documents which they signed did not mean what they said. Importantly, there was no acknowledgement of error by the doctor or any other third party. On the balance of probabilities, fraud on the part of both of the applicants was established.

If there was a misleading statement, and an appellant wished to show that they were not knowingly misleading, then under s226(1) IA (responsibility of an appellant or affected person to establish his or her case or claim) it was up to the appellant to call evidence or provide material to show that the inference that could logically be drawn that the misstatement was not deliberate. The only evidence provided by P and K was their own testimony which was contradictory, lacking in detail, and uncorroborated. The Tribunal was therefore correct to conclude that the applicants knowingly committed fraud by providing incorrect information about their children.

The submission that P's fraud could not be attributed to K was not tenable. She signed the documents with her fingerprint. She was either reckless or negligent, as she could have had the documents read to her. The fact that K could be seen as a derivative applicant in relation to the application in the sense of P being the principal party in filling out the application, did not in any way as a matter of practical fact excuse her from the necessity to understand and honestly sign all relevant documents. K had the same responsibility as her husband to ensure that the information provided was accurate. The medical certificate which she signed related to her alone.

K's culpability was not minimal or far less than that of P. The Tribunal did not error in failing to distinguish between P and K. Both P and K signed the documents at the same time, appeared to be working closely together and were jointly represented. The submissions before the Tribunal appear to have related to them both. However, when their positions were regarded entirely separately, K had not shown on the balance of probabilities that she did not know of the omission.

There was no mens rea requirement of actual fraud before it could be determined that a person's residence was wrongly procured under s158(1)(b) IA ( Rajan v Minister of Immigration). The wording in s158(1)(b) IA precluded the mental element of knowing misrepresentation. Included in the matters to be determined under the provision was whether there was a false or misleading representation. On these plain words there was no requirement for knowledge of the misrepresentation.

The juxtaposition of the words “unjust” and “unduly harsh” separated by the word “or” created a difficulty in the sense that the word “or” indicated a disjunctive separation between the two concepts. However, they were as a matter of fact and application difficult to distinguish. The test was a composite test and the whole picture had to be viewed, both circumstances and effect. A deportation that was unjust was likely to be unduly harsh, and vice versa. A more nuanced analysis of each concept was likely to produce a strained result. The Tribunal did not err by failing to distinguish in a formal way between the two concepts.

The Tribunal acknowledged that there were exceptional circumstances of a humanitarian nature. It considered the personal circumstances of the applicants in detail including being returned to India against their wishes after an 11 year absence and leaving behind their adult children. While this was a hardship, deportation had to be unjust, and unduly harsh. There was no basis to conclude that this was unjust or unduly harsh. There was no error of law.

The Tribunal weighed the adverse public interest considerations, being the damage to the integrity of the Immigration System against the positive public interest considerations of preserving the applicants' continued residence in NZ to reach its conclusion. The Tribunal's reasoning process contained a detailed consideration of the relevant circumstances, and factual findings. The Tribunal determined that it was not, in the circumstances, contrary to the public interest to dismiss the appeal, and it explained why it reached that conclusion.

The Tribunal had not erred by commencing its analysis with the starting point that “the denunciation of fraud, and the maintenance and integrity of, New Zealand's immigration system”. The applicants' false application was the whole reason for the challenge to the applications and the deportation. It could not be ignored or put to one side. It was entirely appropriate for the Tribunal to weigh that factor against factors supportive of the applicants remaining in New Zealand. The public interest could not be evaluated by considering only one matter, or various matters seriatim. The section itself indicated that there had to be a weighing, in using the phrase “… not in all the circumstances be contrary to the public interest”

Most of the judicial review submissions were a reformulation of the appeal submissions, put in administrative law terms. For the reasons set out, it could not be said that the decision of the Tribunal was one that no reasonable decision — maker could have reached. The decision was entirely open to the Tribunal and perfectly reasonable. Further, there were no errors of law. There was no procedural unfairness nor anything illegal or ultra vires.

Appeal and judicial review proceedings dismissed.

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...

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