KRUTI PATEL v MINISTER OF IMMIGRATION [2020] NZSC 27

KRUTI PATEL v MINISTER OF IMMIGRATION [2020] NZSC 27 [2 April 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 136/2019[2020] NZSC 27BETWEEN KRUTI PATELApplicantAND MINISTER OF IMMIGRATIONRespondentSC 137/2019BETWEEN KRUTI PATELApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentMINISTER OF IMMIGRATIONSecond RespondentCourt: Glazebrook and O'Regan JJCounsel: A Schaaf for ApplicantI M G Clarke and E G R Dowse for Respondent in SC 136/2019and Second Respondent in SC 137/2019Judgment: 2 April 2020JUDGMENT OF THE COURTA The applications for an extension of time to file theapplications for leave to appeal are granted.B The applications to adduce further evidence are dismissed.C The applications for leave to appeal are dismissed.D The applicant must pay costs of $2,500 to the respondent.____________________________________________________________________REASONS[1] These two applications for leave to appeal relate to a decision of the HighCourt.1 In that decision, Gordon J dismissed the applicant's appeal against thedecision of the Immigration and Protection Tribunal (the Tribunal) finding her eligiblefor deportation and also dismissed an application for judicial review of the Tribunal'sdecision.[2] The applications for leave were filed out of time, but the reasons for this havebeen adequately explained and we grant the necessary extensions of time to file them.2[3] The applicant seeks leave to appeal directly to this Court from the decision ofthe High Court under s 75 of the Senior Courts Act 2016. The reason she does so isbecause she was unable to obtain leave to appeal against the High Court decision tothe Court of Appeal.3 It is not possible for her to appeal to this Court from the decisionof the Court of Appeal refusing leave to appeal to that Court because such an appealis precluded by s 68(b) of the Senior Courts Act.[4] In order to obtain leave, the applicant must establish that the proposed appealmeets the criteria for leave to appeal set out in s 74 of the Senior Courts Act and mustalso establish that there are exceptional circumstances justifying a direct appeal to thisCourt.4 It is well established that in circumstances where an appeal from the decisionof the Court of Appeal to this Court is precluded by s 68(b), only a rare and exceptional1 Patel v Minister of Immigration [2018] NZHC 2616 (Gordon J) [HC judgment]. The decision ofthe Tribunal was Patel v The Minister of Immigration [2017] NZIPT 600365. The necessary leaveto appeal and bring judicial review proceedings was granted by Edwards J: Patel v Minister ofImmigration [2018] NZHC 577.2 Supreme Court Rules 2004, r 11.3 Leave was declined by the High Court: Patel v Immigration and Protection Tribunal [2019] NZHC1618 (Gordon J) [HC leave judgment]. Special leave to appeal to the Court of Appeal wasdeclined by the Court of Appeal: Patel v Immigration and Protection Tribunal [2019] NZCA 607(French and Brown JJ) [CA judgment].4 Senior Courts Act 2016, s 75(b).case would justify the grant of leave to appeal directly from the High Court,notwithstanding that the Court of Appeal declined leave to appeal to that Court.5Factual background[5] The applicant arrived in New Zealand on a student visa in 2008. In late 2008,a Mr Jingar contacted Immigration New Zealand claiming he had married theapplicant in India in 2007 and had a marriage certificate. Immigration New Zealanddid not act on these allegations at the time.[6] The applicant met Mr Patel, an Indian citizen living in New Zealand, in 2008.They started a relationship in that year and were married in 2009. After the marriage,the applicant applied for a work visa based on her marriage to Mr Patel. Mr Patel alsoapplied for a permanent residence visa and included the applicant in his application asa secondary applicant.[7] In 2011 and 2012, the applicant was interviewed by Immigration New Zealandto determine whether her relationship with Mr Patel was "genuine and stable". Theapplicant was asked about the allegations made by Mr Jingar. She denied she hadmarried Mr Jingar and claimed the marriage documents he had supplied werefraudulent. She suggested that he had been trying to blackmail both her and her family.[8] Immigration New Zealand accepted the applicant's account and grantedresidency to the applicant and to Mr Patel in 2012. They had a daughter, born inMarch 2014. Immigration New Zealand granted the applicant and Mr Patel permanentresidency in September 2014. One month later, they separated. Their marriage wasdissolved in October 2016.[9] In June 2015, Mr Jingar provided Immigration New Zealand with a copy of amarriage certificate and photographs of Mr Jingar, Ms Patel and her daughter takenduring a visit to India in 2014. He also told Immigration New Zealand that theapplicant had returned to India in 2009 to commence divorce proceedings against him5 Sena v New Zealand Police [2018] NZSC 92 at [4]; Burke v Western Bay of Plenty District Council[2005] NZSC 46, (2005) 18 PRNZ 560 at [4]; and White v Auckland District Health Board [2007]NZSC 64, (2007) 18 PRNZ 698 at [5]–[6].and that the divorce proceedings were dismissed in 2011 for want of prosecution. TheImmigration New Zealand office in India investigated Mr Jingar's claims and foundthat the marriage certificate appeared valid and confirmed Mr Jingar's account of thedivorce proceedings.[10] Immigration New Zealand advised the applicant of its investigation inDecember 2015. The applicant reasserted that the marriage certificate was fraudulent.She said that after she discovered the marriage had been registered, she received legaladvice in India that it would be easier to commence divorce proceedings on thegrounds of abuse rather than to obtain a declaration annulling the marriage.[11] Immigration New Zealand served a deportation liability notice on the applicantin August 2016 on the grounds that she had concealed relevant information pursuantto s 158(1)(b)(ii) of the Immigration Act 2009. The concealed information was thefact that she was married and that she had commenced divorce proceedings in India.[12] The applicant appealed to the Tribunal against Immigration New Zealand'sfactual findings and also on humanitarian grounds under s 158(3)(b). After theTribunal dismissed her appeal, the applicant commenced her appeal to the High Court.Further evidence[13] The applicant also filed two applications to adduce further evidence. Havingconsidered that material we are satisfied that we would not be assisted by theadmission of the evidence at the leave stage. The applicant also sought directions thather former counsel be required to file a response to her questions about the allegedfailure of counsel to call evidence in the High Court. There is no basis for an ordercompelling the giving of evidence in this way and we are satisfied that it would not beappropriate to make such an order.Proposed grounds of appeal[14] There are four broad grounds on which the applicant seeks leave. The firstthree relate to her appeal to the High Court and the last to the judicial review claim.We will deal with those relating to the appeal first.[15] The first ground relates to the conclusion of the High Court that the divorceproceedings were "relevant information". The applicant wishes to challenge thisfinding. She adduced evidence designed to establish that the marriage to Mr Jingarwas fraudulent, and argued that, if that were accepted, then the divorce proceedingswere not relevant information and the failure to disclose them could not thereforeamount to the concealing of relevant information. The High Court concluded that thefailure to disclose the existence of the divorce proceedings was the concealing ofrelevant information, whether or not the marriage was fraudulent.6 We do not considerthere is sufficient prospect of success in overturning that finding to grant leave toappeal, let alone to establish that this is a rare and exceptional case justifying directleave to appeal.[16] The second point relates to the applicant's argument that there wereexceptional circumstances of a humanitarian nature making it unduly harsh to requireher removal from New Zealand.7 In support of that argument, the applicant said thatshe was a victim of fraud in relation to the alleged marriage to Mr Jingar. She saidboth absence of fault and being the victim of fraud were relevant to the determinationof this issue, citing the observations of this Court in Guo v Minister of Immigration.8It is not necessary for us to engage with this issue because we see insufficient prospectof success in an argument that the applicant was not, in fact, at fault in concealing theinformation about the divorce proceedings to justify a further appeal. That meansthere is no factual underpinning for the argument she wishes to make if leave to appealis granted.[17] The third proposed ground of appeal is the applicant's contention that the HighCourt unduly restricted the definition of "humanitarian circumstances" to theconsequences and effects of deportation.9 This was, she says, contrary to the decisionin Ye v Minister of Immigration, where this Court said it was undesirable to define thephrase.10 The effect of this argument is to establish that being a victim of fraudqualifies as a humanitarian circumstance, and that the evidence she wished to adduce6 See HC leave judgment, above n 3, at [40].7 Immigration Act 2009, s 207(1)(a).8 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [10].9 HC judgment, above n 1, at [85].10 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].about the circumstances of the alleged marriage would establish this. However, thisis not a matter on which the applicant obtained leave to appeal to the High Court. Wedo not consider it would be appropriate for this Court to deal with that issue as a courtof first and last instance. Nor do we consider that this would be an appropriate casefor consideration of the issue, given that it depends on disputed factual matters whichwould have to be resolved by this Court as, in effect, a court of first instance.[18] The last ground of appeal the applicant wishes to pursue relates to the judicialreview proceedings. She wishes to argue that the counsel who acted for her before theTribunal failed to call relevant evidence, leading to a breach of natural justice. Sheargues that this is a point of public importance, giving the Court the opportunity togive guidance on when an error by counsel will amount to procedural unfairness. Wesee this as essentially factual in nature, not giving rise to any point of publicimportance. The difficulty the applicant faces is that whether or not the marriage wasfraudulent, her failure to disclose the divorce proceedings to ImmigrationNew Zealand was concealing what would undoubtedly have been highly relevantinformation, that would have led Immigration New Zealand to inquire further into thecircumstances of the marriage to Mr Jingar.[19] The criteria for leave to appeal to this Court in s 74 of the Senior Courts Actare not met in this case, let alone the exceptional circumstances requirement in s 75.In these circumstances, the applications for leave to appeal are dismissed.Result[20] The applications for an extension of time to file the applications for leave toappeal are granted.[21] The applications to adduce further evidence are dismissed.[22] The applications for leave to appeal are dismissed.[23] The applicant must pay costs of $2,500 to the respondent.Solicitors:M F Tuilotolava, Auckland for ApplicantCrown Law Office, Wellington for Respondent in SC 136/2019 and Second Respondent inSC 137/2019