IMRAN MIRZA V MINISTER OF IMMIGRATION HC WN CIV 2009-485-000120

IMRAN MIRZA V MINISTER OF IMMIGRATION HC WN CIV 2009-485-000120 4 March 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-000120UNDER the Immigration Act 1987 IN THE MATTER OF an appeal under s117 of the Act BETWEEN IMRAN MIRZA Appellant AND MINISTER OF IMMIGRATION Respondent Hearing: 2 March 2009 Counsel: D Lester for Appellant V Casey and P D McCarthy for Respondent Judgment: 4 March 2009JUDGMENT OF SIMON FRANCE J[1] This is an appeal against a decision of the Deportation Review Tribunal dated 15 December 2008. In February 2007 the Minister of Immigration had revoked Mr Mirza's permanent residence on the basis that it had been obtained by fraud. [2] Mr Mirza appealed to the Deportation Review Tribunal under s22 of the Immigration Act 1987. That appeal was unsuccessful, and he appeals further pursuant to s117 of the Immigration Act 1987. Appeals to the High Court under that section are limited to questions of law.Facts[3] The background facts start in 1995 when a Mr Chatha, who had previously legitimately obtained New Zealand residence, returned to Pakistan to marry Mr Mirza's sister. This occurred, and in turn Mr Chatha's wife applied for residence based on that marriage. When seeking residence, she declared that Mr Mirza was her only brother. In fact, there were four other siblings who were not mentioned. [4] Next, Mr Mirza's parents applied for residency under the Family (Parent) Category. They were sponsored by their daughter, who as noted as Mr Mirza's sister and Mr Chatha's wife. That application contained the same misleading information concerning the number of children. It was a mis-statement of significance, because acknowledgement of the other four siblings would change the location of the "centre of the family", and affect the likely success of the application. Mr Mirza's parents were successful in their application. [5] In August 1997, Mr Mirza next made application. As with the previous applications that were made, he declared that he had just the one sibling, his now New Zealand resident sister. That application was also made under the Family Category, and was successful. Mr Mirza came to New Zealand in November 1997. [6] In late 1999, one of the undeclared siblings, a Mr Aurang Zeb arrived in New Zealand on a visitor's permit. He came on a false name, and had the intention of marrying a New Zealand citizen. [7] Mr Mirza remained in New Zealand apart from a short time in 2000 when he went to the United States seeking work. He was unsuccessful and came back to New Zealand. In October 2003 he returned to Pakistan. Whilst there he married, and had a daughter. He returned to New Zealand in October 2004. In March 2008, his wife and daughter arrived in New Zealand on a visitor's permit.[8] In between his return to New Zealand after his marriage in 2004, and the arrival of his wife in early 2008, the Immigration Service had been enquiring into Mr Mirza's status. This began in October 2005, and was completed on 22 February 2007 when the Minister revoked Mr Mirza's residency. Mr Mirza's wife and daughter arrived after that time, but their temporary visas were subject to final resolution of Mr Mirza's immigration status.The contest over revocation[9] The primary focus of the challenge to revocation has been in relation to what degree of knowledge Mr Mirza had about the deceit. It is common ground that the central figure in all these events is Mr Chatha. He has been convicted of fraud, and sentenced to imprisonment in relation to it. An appeal to the Court of Appeal was unsuccessful. [10] It seems that Mr Zeb has also been charged in relation to his conduct and convicted. However, he has fared better. His residency has been revoked, but he has been granted a two year temporary permit, with an indication of favourable consideration for permanent residency at the end of that. He will receive a character waiver in relation to his conviction. [11] The consistent story that has been advanced in relation to these various false immigration applications is that Mr Chatha completed them. The other participants have queried the degree of knowledge they had about the contents of the form, claiming to have signed blank forms. Mr Mirza says that he believed he was applying under the qualified migrant work category. At the hearing before the Deportation Tribunal, he submitted evidence that would show that he was in a position to have successfully applied under that category. This evidence was submitted to support the inference that although the information on his application was false, he was not the person behind the falsity, because he had no need to lie. The relevance of this is that a person's degree of culpability in relation to the misleading information is recognised to be a significant factor in whether the falsehood will lead to cancellation of residency or not.Decision under appeal[12] In what is, with respect, a clear and well structured decision, the Deportation Review Tribunal reviewed all the matters relating to Mr Mirza. The decision begins with the correct identification of the relevant statutory provisions and the applicable case law. No issue is taken with that statement of the legal position. [13] Under a heading called "Assessment" the Tribunal noted the appellant's age, the length of time during which he had been in New Zealand, his personal and domestic circumstances, his work record, the grounds on which the permit was revoked, the interests of his family, and other relevant matters. These headings obviously reflect the statutory criteria in s22(6) of the Act. The Tribunal then considered that the first enquiry was into Mr Mirza's degree of culpability. It noted that blame was placed on Mr Chatha. However, the Tribunal rejected Mr Mirza's claim of innocence, and held that he was aware of the falsity of his application. They accepted that Mr Chatha was the mastermind, but noted that it was suspicious that from the time of the very first application by Mr Mirza's sister, the same crucial mis-statement of fact appeared in all the applications. The Tribunal considered it significant that Mr Mirza had given three different versions of his role in relation to his own application, and particularly as to who had completed the forms, and what knowledge he had. [14] The Tribunal in reaching this conclusion noted that the appellant placed considerable weight on his capacity at the time to apply for residency on a different basis. It recognised that the underlying thrust of this submission was that this ability to obtain residency under another route undermined any suggestion of deliberate falsehood because such falsehood was unnecessary. However, the Tribunal considered that for whatever reason, Mr Mirza had chosen to advance the application under the Family Category, and that he knew of the falsehood. That being so, the ability to have obtained residency a different way was irrelevant. [15] Having identified the degree of culpability that Mr Mirza held in relation to the false application, the Tribunal addressed other aspects namely, his family situation, the need for the integrity of the system to be maintained and the extent towhich he may have been influenced by cultural norms, namely pressure from his father, or a view that he had to comply with his father's wishes (I note here that the father was said to have played a significant role in completing Mr Mirza's application form). [16] The Tribunal also went on to consider the current more favourable situation of the principal offenders, and whether there was a consequent injustice to Mr Mirza. It was noted that Mr Chatha and probably Mr Zeb would be able to continue to reside in New Zealand. The Tribunal did not consider this to be a satisfactory reason for allowing Mr Mirza to remain, since the circumstances of the other persons involved were different. In particular, Mr Chatha was a New Zealand citizen and so not subject to deportation. Mr Mirza's humanitarian circumstances were not considered to be particularly compelling, and so the decision of the Minister was confirmed.Grounds of appeal[17] Three grounds of appeal are advanced. I take them in a different order from those discussed at the hearing. [18] First, it is said that the Tribunal erred in failing to obtain, prior to giving judgment, the decision of the Court of Appeal on Mr Chatha's conviction and sentence appeal. This judgment was released five days prior to the Tribunal decision. It is said that had the Tribunal had that information, it may have better appreciated the pivotal role of Mr Chatha, and accordingly the lesser culpability of Mr Mirza. [19] Second, it is said that the Tribunal breached its legal obligation to treat like cases in a consistent manner. [20] Third, it is said that the Court erred in holding that the false information given by Mr Mirza on his original application would be an absolute stumbling block to any renewed application he might currently make.[21] I address each in turn.(a) The Court of Appeal decision[22] Mr Chatha was convicted and sentenced to two years' imprisonment. He appealed both conviction and sentence. The conviction appeal concerned legal representation. The sentence appeal was advanced on the basis that imprisonment could not be imposed upon Mr Chatha because he had not been legally represented, and also on the basis that the sentence was manifestly excessive. [23] In my view, there is nothing in the Court of Appeal judgment that adds to the knowledge already held by the Tribunal. Therefore, whether or not the Tribunal should have had regard to the decision is of no consequence. Concerning the sentence imposed upon Mr Chatha, the only observation of the Court of Appeal is to paraphrase the remarks made by the sentencing Judge. The relevant sentence relied upon by Mr Lester was that, in the sentencing Judge's view:Mr Chatha dominated his family and Mr Zeb in particular. The Judge viewed the offending as a step in a concerted plan by Mr Chatha to facilitate the entry of other family members by the provision of false information through Mr Zeb's application.[24] The obvious point is that this is the view of the sentencing Judge which the Court of Appeal is just noting. The sentencing remarks had long been available to be put before the Tribunal had the parties wished. Second, in the decision under appeal the Tribunal had noted Mr Chatha's role (at paragraph [67]):The Tribunal finds, however, that the appellant has always been aware of the category of residence policy under which he ultimately applied and the falsity of his and the families' applications, though we do accept that Mr Chatha was the mastermind of the scam (emphasis added).[25] Mr Chatha's case concerned frauds perpetrated by him and Mr Mirza's brother, Mr Zeb. The Court of Appeal did not have before it Mr Mirza's situation. The judgments are of some use in terms of an observation on Mr Chatha's personality, but beyond that cannot really assist in relation to Mr Mirza's situation.[26] I am accordingly of the view that the Court of Appeal judgment was irrelevant to the case before the Deportation Review Tribunal. Before moving on from this ground of appeal, however, I record that Mr Lester submitted that it was the Tribunal's obligation to have itself obtained this decision. This submission was made in reliance on the fact that under the Act, the Tribunal is a Commission of Inquiry. In her submissions, Ms Casey identified the relevant authorities that had previously considered this issue. Only one needs current reference – Minister of Immigration v Al-Hosan [2008] NZCA 462. The Court their notes (at paragraph [49]) that:In the normal run of cases, [it] can rightly expect that an appellant will make his or her case by putting before the DRT information which, if accepted, would lead the DRT to quash the revocation.[27] The circumstances of this case are so far removed from a situation where one might expect the Tribunal to make its own enquiries, that no further recitation of authority is required. Mr Chatha's conviction and sentencing had occurred some time prior to the Tribunal hearing. Shortly before the Tribunal hearing, the record shows that the Tribunal asked the Department of Labour for information on various things including:Status of prosecution of Arshad Chatha.[28] The written submissions presented to the Tribunal by the parties subsequent to this request informed the Tribunal that Mr Chatha had been convicted and sentenced to two years. Mr Lester submitted that the Tribunal's request must be taken to include an enquiry about the appeal process. However, there is no reason to read that into the request. No-one at the hearing before the Tribunal suggested that enquiries should be made as to the status of the appeal, nor suggested that the Tribunal should defer its decision until an outcome was known. [29] This ground of appeal fails.(b) Consistency with other persons involved in the scheme[30] Mr Chatha is a New Zealand citizen. Accordingly, his immigration status is not in issue. [31] Mr Zeb has seemingly had a more favourable outcome than that accorded to Mr Mirza. The Tribunal was advised that Mr Zeb has had his residency revoked, but was granted a two year temporary permit to enable him to continue work. He has apparently also been advised (I have not been provided with the formal decision) that at the end of two years, if he provides satisfactory health and character information, he will be granted residency. In relation to the character component, he has been advised that he will receive what is known as a character waiver in relation to the convictions. When counsel for Mr Mirza provided this information to the Tribunal, it was appropriately noted that, as a point of distinction, Mr Zeb was in a different position from Mr Mirza because his wife and two children were New Zealand citizens. [32] The submission of inconsistent treatment was premised on the underlying proposition that Mr Mirza's culpability was less than Mr Zeb's. That was not accepted by the Tribunal, and in my view it was open to them to do so. Once it had been concluded that Mr Mirza was fully involved in his own fraud, any differences in culpability, in my view, become slight. [33] The different status of Mr Zeb's family as New Zealand citizens is plainly a basis on which a different decision can be reached. [34] Finally, I note a point I made at the hearing, namely, that it is not a question of inconsistency on the part of the Tribunal. The decision reached in relation to Mr Zeb was that of the Minister. The argument would have to be that the Minister has been inconsistent, and that this was a fact that the Tribunal could act on to give Mr Mirza a consistent, but arguably otherwise unmerited, outcome. If one wanted to advance this argument, then at the least I would have thought that one would have put the documentation concerning Mr Zeb before the Tribunal. This was not done,although clearly the appellant had access to some of that information given the material provided in the written submission. [35] This is a point of law appeal. I can discern no error or arguable point in the manner in which the Tribunal dealt with this submission. Accordingly, it cannot succeed.(c) Mr Mirza is currently eligible for a work permit?[36] Counsel submits that the Tribunal took the position that it was irrelevant whether Mr Mirza could currently meet the criteria for a work permit, because any such application would be rejected because of his past misconduct. [37] I answer this contention briefly. First, in my view that is not the correct reading of the Tribunal decision. The passage relied upon by the appellant is dealing with the point about Mr Mirza's alternative eligibility at the time of his initial application. It is not dealing with his current eligibility. Second, I agree with Ms Casey, that Mr Mirza's current eligibility to apply for a work permit was not a matter that was relevant to the Tribunal decision. The Tribunal had to consider whether, in light of the statutory criteria and its discretion, it should overturn the Minister's revocation. Although the matters it can take into account are broad, I see no basis on which Mr Mirza's current immigration capacity would affect that. [38] Mr Lester suggested that current eligibility, if recognised, could open the possibility that the Tribunal would overturn the Minister's decision but with conditions that Mr Mirza seek residence under a different category. He was not, however, able to point to any provision in the Act that would enable the Tribunal to act in this way. If the Tribunal overturned the Minister's decision, then Mr Mirza would be able to revert to his existing residence status. He would have no need to seek some other basis for remaining. [39] This ground of appeal also fails.Conclusion[40] For the foregoing reasons, the appeal fails. I see no reason why the normal rule that costs follow the event should not be applied, but counsel, if they wish, may file memoranda. __________________________ Simon France JSolicitors: D Lester, Barrister, Canterbury Chambers, PO Box 825, Christchurch, email: dmlester@xtra.co.nz V Casey, Crown Law Office, PO Box 2858, Wellington, email: v.casey@crownlaw.govt.nz