PATEL v MINISTER OF IMMIGRATION [2018] NZHC 577

PATEL v MINISTER OF IMMIGRATION [2018] NZHC 577 [29 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-001691[2018] NZHC 577IN THE MATTER OF an application for leave to appeal undersection 245 of the Immigration Act 2009BETWEEN KRUTI PATELApplicantAND MINISTER OF IMMIGRATIONRespondentfurther proceeding continued overHearing: 15 November 2017[Further submissions received 12 and 16 February 2018]Counsel: A Schaaf for the ApplicantI M G Clarke for the RespondentsJudgment: 29 March 2018JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 29 March 2018 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:CIV-2017-404-001691UNDER Section 8 of the Judicial ReviewProcedure Act 2017IN THE MATTER OF an application for leave to bring judicialreview proceedings under section 249 ofthe Immigration Act 2009BETWEEN KRUTI PATELApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentMINISTER OF IMMIGRATIONSecond RespondentIntroduction[1] Ms Patel applies for leave to appeal and to review a decision of the Immigrationand Protection Tribunal (Tribunal).1[2] The Tribunal upheld the Minister of Immigration's decision to issue adeportation notice to Ms Patel under s 158(1)(b)(ii) of the Immigration Act 2009 (Act).It rejected Ms Patel's contentions that an alleged marriage to Mr Jingar in India wasprocured by fraud. It found that Ms Patel had concealed relevant information, namelyher commencement of divorce proceedings against Mr Jingar in 2009. It also foundthat there were no exceptional circumstances of a humanitarian nature whichwarranted the grant of the appeal.[3] The leave applications raise issues about the knowledge and intent required toestablish concealment of information in circumstances where there has been somedisclosure, and the relevance of that to an assessment of whether there are exceptionalcircumstances of a humanitarian nature. The applications also raise issues about theTribunal's approach to the evidence adduced in relation to the alleged marriage, andprocedural unfairness arising out of an alleged counsel error.Background[4] Ms Patel is a citizen of India. She arrived in New Zealand in 2008 on a studentpermit and subsequently obtained a succession of permits and visas that allowed herto lawfully work and remain in New Zealand.[5] In November 2008, Immigration New Zealand (INZ) was contacted byMr Jingar, an Indian citizen residing in that country. He asserted that Ms Patel hadmarried him in India in 2007. INZ did not take any steps to verify his allegations atthis time.[6] Ms Patel met Mr Vishal Patel in 2008, and commenced a relationship with himin 2009. Mr Patel was also an Indian citizen residing in New Zealand. They were1 Patel v Minister of Immigration [2017] NZIPT 600365.married on 3 June 2011. Shortly after their marriage, Mr Patel applied for permanentresidence and included his new wife, Ms Patel, in his application.[7] INZ interviewed Ms Patel in August 2011. In the course of the interview,Ms Patel was asked about Mr Jingar, and his allegations that they were married. Shetold the interviewer that the marriage was not genuine, and that a marriage document,which purported to prove the marriage, was forged. When asked whether she wantedto add or clarify anything, she said, "if you want to know more I can tell you". Thenotes of the full interview record the questions and answers as follows:Who is Hardick Harivadan Jingar? He applied for a SV in Jan 2008,around the same time you did. We have received information that youwere not single when you first came to NZ as a student. You were marriedto Mr Jingar in India since 24 Sep 2007. We received information thatyou would try to get married again in NZ to get NZ residence. Pleasecomment.He was my friend. When I was applying to come here we were doing IELTStogether. Were in the same class. He was liking me but I told him No, I donot like him. I was planning to make a career and not interested in therelationship. He was crazy about you. He saw his girlfriend in him. Hisgirlfriend committed suicide because her father was against their relationshipand he did not want them to get married. She was emotional and she killedherself in Feb 2007 and then he went into that trauma. He wanted to leaveIndia. Then we met and he found out I was rich. I found out he was not a niceperson, that is why the girl's father was against the marriage. I was close tohis sisters but I told him I was not interested. He wanted to go to Australia butthen changed to NZ when he found out I was going there and I had an auntyhere to provide accommodation. He did not have any financial support so itwas good for him. He wanted us to get married but I said no. Then I got avisa and I was happy. He was harassing me and my mum took my phone. Istayed at home 2 months and went out only with my family. He was tellingeverywhere to her friends and families that they we got married and showedthem the fake document. He even showed it to my dad and he was upset anddid not believe it. He sent a copy to all my friends through Facebook. All hisdocs to come to NZ were fake. Until today he is blackmailing my family. Itold Vishal about it. He still got married to me. My uncle and aunty herebelieved that it was a true document and told me to move out. Now they myparents have no relationship with them. Hardick said he would createproblems for me and I would be sent back from NZ as he wants me back. Hetold my dad I was not attending the school and working on KRoad. My daddid not speak to me a year. I took my papers to him in 2009 and then hebelieved me. Hardick did the robbery and has a police record.Is it a genuine relationship on your behalf?Yes. I will live with him the whole life.Anything you want to ad [sic] or clarify?If you want to know more I can tell you.[8] Ms Patel was interviewed again in 2012. The primary purpose of the interviewwas to obtain information in order to establish whether the relationship betweenMr and Mrs Patel was stable and genuine. She was asked again about Mr Jingar. Thenotes of that interview record as follows:Who is Hardick Harivadan Jingar? We have received information thatyou were not single when you first came to NZ as a student. You weremarried to Mr Jingar in India since 24.0-9.2007. We also receivedinformation that you would try to get married again in NZ to get NZresidence. Please comment.1. He was my good friend in India.2. That 2nd question and comment is not right.3. No that is not right.4. No.I am well aware of this information as I was interviewed last year for my workvisa and these allegations were asked of me at the interview.[9] INZ accepted Ms Patel's account and made no further inquiries in either 2011or 2012. Resident visas were granted to Mr and Mrs Patel in August 2012. Theirdaughter was born on 25 March 2014. She is currently being cared for by Ms Patel'sparents in India.[10] Mr and Mrs Patel were granted permanent resident visas in September 2014.One month later, in October 2014, Mr and Mrs Patel separated.[11] Mr Jingar contacted INZ again in June 2015. He provided INZ with a copy ofa marriage certificate, and with photographs taken of Mr Jingar, Ms Patel and herdaughter during Ms Patel's visit to India in 2014. Mr Jingar repeated the sameallegation about the marriage, but this time he added that Ms Patel had returned toIndia in 2009 and had commenced proceedings to divorce him at that time. He saidthat the Gujarat Court had dismissed the proceeding because Ms Patel was not presentto prosecute it. As such, Mr Jingar alleged that his marriage to Ms Patel remainedvalid.[12] After receiving this further communication, INZ instructed its office inNew Delhi to investigate Mr Jingar's claims. The investigations were carried out byMr Tripathi, who instructed a company called Data Flow to carry out theinvestigations. Following receipt of the information from Data Flow, Mr Tripathiconcluded that the marriage certificate between Ms Patel and Mr Jingar appearedvalid, and that Ms Patel had lodged an application for divorce which had beendismissed by the Court.[13] On 4 December 2015, INZ wrote to Ms Patel stating that it had commenced aninvestigation into whether she was liable for deportation. The letter stated that thereasons for believing Ms Patel may be liable for deportation included the fact that INZwas not advised of her marriage to Mr Jingar prior to being granted residence, and thathad INZ been aware of the marriage, she may not have been eligible to be included inMr Patel's residence application.[14] In correspondence with INZ, Ms Patel repeated her view that the marriage wasnot genuine and that Mr Jingar was trying to blackmail her and harass her. She alsoreiterated that she considered the marriage certificate sent by Mr Jingar to have beenfraudulently obtained. In relation to the divorce proceedings, she explained that shehad received legal advice in India to commence those proceedings.[15] On 25 August 2016, the Minister issued a deportation liability notice. Thegrounds specified in the notice are as follows:1) On 22 July 2011, Vishal Patel applied for residence under the SkilledMigrant Category. You were included in the application as his wife.In order to be granted residence, you were required to be in a genuineand stable relationship with Mr Patel.2) A copy of a New Zealand marriage certificate dated 3 June 2011, foryour marriage to Mr Patel, was provided with the application.3) You were granted a resident visa on 23 August 2012.4) INZ has since been made aware that that it [sic] appears you marriedHardik Jingar on 24 September 2007. INZ understands that youstarted court proceedings to divorce Mr Jingar in 2009, that theproceedings were disposed of by the courts, and you are still legallymarried to Mr Jingar.5) INZ was not advised of your marriage to Mr Jingar prior to you andMr Patel being granted residence. Your marriage to Mr Jingar wasrelevant to INZ's assessment of your partnership with Mr Patel,whether you met character requirements, and whether you could beincluded in Mr Patel's application for residence. If INZ had beenaware of your first marriage, you may not have been eligible to beincluded in Mr Patel's application for residence.[16] Ms Patel subsequently appealed to the Tribunal on the facts and onhumanitarian grounds. The legislative framework relevant to that appeal is set outbelow.Legislative framework[17] The deportation notice was issued under s 158(1)(b)(ii) of the Act. That sectionprovides:158 Deportation liability of residence class visa holder due to fraud,forgery, etc(1) A residence class visa holder is liable for deportation if—(b) the Minister determines that—(ii) any of the information provided in relation to theperson's, or any other person's, application, orpurported application, for a visa on the basis of whichthe residence class visa was granted was fraudulent,forged, false, or misleading, or any relevantinformation was concealed.[18] Ms Patel appealed against her liability for deportation on the facts under s 201of the Act. The grounds for determining an appeal on the facts are set out in s 202 ofthe Act. Subsection (ca) applies in this case and provides as follows:202 Grounds for determining appeal on factsThe Tribunal must allow an appeal against liability for deportation on the factswhere,—(ca) in the case of an appellant liable for deportation undersection 158(1)(b)(ii), the Tribunal is satisfied, on the balance ofprobabilities, that none of the information provided in relation to theperson's, or any other person's, application, or purported application,for a visa on the basis of which the residence class visa was grantedwas fraudulent, forged, false, or misleading, and no relevantinformation was concealed:[19] Ms Patel also appealed to the Tribunal on humanitarian grounds under s 206 ofthe Act. The grounds for determining a humanitarian appeal are set out in s 207(1) ofthe Act, which provides as follows:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian naturethat would make it unjust or unduly harsh for the appellant tobe deported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[20] Section 207(1)(a) is comprised of three limbs, each of which must beestablished for the Tribunal to allow an appeal. Those limbs are:2(a) exceptional circumstances;(b) of a humanitarian nature;(c) that would make it unjust or unduly harsh for the person to be removedfrom New Zealand.[21] The exceptionality threshold is a high one. The humanitarian circumstancesmust "be well outside the normal run of circumstances".32 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. The Supreme Court'sdecision concerns s 47 of the Immigration Act 1987 which was in substantially similar terms tos 207. Accordingly, the Court's analysis remains relevant to the interpretation and application ofs 207: see Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [12];Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [7], citing Guo v Ministerof Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [8]–[9].3 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].Decision of the Tribunal[22] At the Tribunal hearing, Ms Patel gave evidence on her own behalf, and calledevidence from Mr Woodcock, a registered clinical psychologist. The Ministerarranged for evidence to be given by telephone-link by Mr Tripathi, the officer in theNew Delhi branch of INZ who had carried out the investigations into the marriage.[23] The Tribunal identified that at the heart of Ms Patel's predicament was the factthat she claimed to be in a stable and genuine relationship with Mr Patel when sheappeared to already be married to Mr Jingar.4 The Tribunal referred to the appellant'scontentions that the marriage certificate was false, but noted that the evidence tendedto point the other way and referred to Mr Tripathi's opinion that it was unlikely thatthe marriage certificate was fraudulently obtained.5[24] The Tribunal also referred to the divorce proceedings which it found affirmed,rather than undermined, the validity of the marriage to Mr Jingar. The Tribunalrejected Ms Patel's explanation for issuing divorce proceedings as implausible. Itconsidered that it was "unlikely that a lawyer would suggest that a client risk beingseen to endorse as genuine a document which the client asserts is false". It alsoconsidered unlikely that a lawyer would recommend to a client that he or she commitperjury by asserting on oath a falsehood to a court. The Tribunal regarded it assignificant that no evidence had been adduced from the lawyer to corroborate thatclaim, and that no evidence was called from any family members to support Ms Patel'scontention.6[25] The Tribunal accepted that Ms Patel had told INZ about the marriage certificatein the 2011 and 2012 interviews,7 but it rejected any claim that she disclosed the factof her divorce proceedings.8 The Tribunal observed that, from the point of view of theinterviewing officers, the disclosure of divorce proceedings would have contradictedthe appellant's claim that her marriage to Mr Jingar was not valid, and that themarriage certificate was fraudulent. The Tribunal said it would make no sense for her4 Patel v Minister of Immigration [2017] NZIPT 600365 at [57].5 At [58]–[60].6 At [61].7 At [64].8 At [65].to seek to divorce a man to whom she claimed not to be married. In addition, theTribunal noted that the fact that the appellant had applied for, but not obtained, adivorce in India rendered her marriage to Mr Patel bigamous.9[26] The Tribunal reached the following conclusion on the appeal on the facts:[69] The Tribunal finds on the balance of probabilities that the appellantdid not disclose to Immigration New Zealand, in either 2011 or 2012, that shehad commenced proceedings for divorce against Mr Jingar in 2009. This wasinformation of direct relevance to the issue that Immigration New Zealandwas required to address when determining whether to issue to her a work visaand a residence visa; namely, whether the appellant was in a genuine andstable relationship with Mr Patel. In failing to disclose this information, theappellant deprived Immigration New Zealand of a relevant line of inquiry.[27] In relation to the appeal on humanitarian grounds, the Tribunal canvassedMs Patel's personal circumstances, the best interests of her daughter, Ms Patel'smental health and her vulnerability to Mr Jingar.[28] The Tribunal considered that returning to India would be emotionally difficultfor Ms Patel, but her parents, brother, and daughter would provide significantemotional and practical support while she sought to re-establish herself.10 It did notconsider there to be any evidence that established that Ms Patel would be unable tosupport herself in India.11 The Tribunal considered the best interests of Ms Patel'sdaughter would continue to be met in the foreseeable future by remaining in Indiawhether Ms Patel returned to India or remained in New Zealand.12[29] In relation to Ms Patel's depressive condition and anxiety disorder, the Tribunalnoted that this may be connected to a sexual assault at the hands of Mr Jingar.However, the Tribunal did not consider Ms Patel to be at risk of further sexual assaultby Mr Jingar, and, if anything, she was more likely to be the subject of emotionalmanipulation than physical assault.13 The Tribunal considered that Ms Patel wouldget sufficient support in India for her mental health, particularly as her brother is amedical professional. The Tribunal also referred to Mr Woodcock's evidence that, in9 At [67].10 At [95].11 At [96].12 At [97].13 At [100].his view, the anticipation of a return to India would be worse for the appellant than theactual event of meeting Mr Jingar, were that to occur.14[30] Taking all those circumstances into account, the Tribunal did not think theymet the high threshold of exceptionality required by the Act.15 That finding made itunnecessary to go on and consider the other limbs of the s 207 test.16[31] The appeal was accordingly declined.Leave to appeal: legal principles[32] Ms Patel applies for leave pursuant to s 245 of the Act. That section allows aparty to appeal on a point of law with the leave of the High Court or the Court ofAppeal.[33] In determining whether to grant leave, the Court must have regard to whetherthe question of law involved in the appeal is one that by reason of its general or publicimportance or for any other reason ought to be submitted to the High Court.17[34] The Court of Appeal has held that the test for leave in s 245 is similar to thatwhich applied under s 67 of the Judicature Act 1908. That is, the appeal must raisesome question of law or fact capable of bona fide and serious argument in a caseinvolving some interest, public or private, of sufficient importance to outweigh thecost and delay of a further appeal.18[35] In Machida v Chief Executive of Immigration of New Zealand, the Court ofAppeal summarised the relevant test as requiring an applicant to identify a seriouslyarguable question of law which either:1914 At [101].15 At [102].16 At [103].17 Section 245(3).18 Minister of Immigration v Jooste [2014] NZCA 23 at [5], citing Waller v Hider [1998] 1 NZLR412 (CA) at 412.19 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8] and the cases cited in that judgment.(a) has importance extending beyond the particular case (which is what"general or public importance" entails); or(b) for some other reason warrants a decision from the High Court.[36] In relation to the "any other reason" ground, the Court of Appeal said that itagreed with the series of decisions in the High Court which have held that it wouldonly be "in an exceptional case involving individual injustice to such an extent thatthe Court simply could not countenance the Tribunal's decision standing, that thisalternative requirement could be met".20[37] There has been judicial debate in the High Court about the scope of the "anyother reason" ground.21 This debate has assumed particular significance inapplications for leave to judicially review a Tribunal's decision under s 249 of the Act.For present purposes, the Court of Appeal's decision in Machida represents the lastword on the scope of that ground in applications for leave to appeal.[38] An applicant seeking leave to appeal to challenge a factual finding by theTribunal faces a triple hurdle. That triple hurdle was described by Kós J in Taafi vMinister of Immigration as follows:22(a) First, the applicant will need to show a seriously arguable case thatfactual findings by the Tribunal are actually incorrect. An appealCourt will not interfere where there is an available evidential basis forthe Court's finding.(b) Secondly, the applicant will need to show that the factual errors are,in combination and in the context of the whole decision, so grave asto constitute an error of law. That is, it is seriously arguable that:(i) the Tribunal has made a finding of fact which is based on noevidence, based on evidence inconsistent with orcontradictory of another finding of fact, or contradictory ofthe only reasonable conclusion of fact available on theevidence; and20 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].21 See, for example, R M v Immigration and Protection Tribunal [2016] NZHC 735 at [33]–[37];Kumar v The Minister of Immigration [2016] NZHC 1593 at [37]-[41]; LMN v Immigration andProtection Tribunal New Zealand [2013] NZHC 2077 at [33].22 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].(ii) the errors of fact are so significant and extensive that aproperly-directed Tribunal may well have reached a differentdecision overall on the application to quash the deportationorder.Thirdly, the applicant must show that the question of law is one ofgeneral or public importance, or for some other reason ought to beconsidered on appeal. The former is a hard ask in the case of factualerrors, no matter how profound. Thus [the applicant] relies on thealternative limb that there is "other reason" why the question shouldbe submitted to the High Court. In my view it would only be inexceptional circumstances, involving individual injustice to such anextent that the Court simply could not countenance the first instancedecision standing, that this alternative requirement will be met.(footnotes omitted).Leave to appeal: Ms Patel's application[39] Ms Patel seeks leave to appeal on five questions which are as follows:(a) Did the Tribunal err in law by finding that the appellant concealed thefact of her application to divorce Mr Hardik Marivadan Jingar in thecircumstances of this case where evidence was available that theregistration of the marriage could have been procured by forgery?(b) Did the Tribunal err when it did not consider the signatures on theMemorandum of Marriage and the Certificate of marriage from theHindu Religious Priest submitted by the respondent as evidence ofmarriage between the applicant and Mr Jingar when those signaturesmay have been forged on the face of those documents?(c) Did the Tribunal err in concluding that the applicant did marryMr Jingar by taking into account unreliable third hand hearsayevidence and the opinion of Mr Amitabh Tripathi, ImmigrationOfficer employed by the Immigration Service in India, about thevalidity of the applicant's marriage?(d) Did the Tribunal err in not seeking further evidence from therespondent, including forensic evidence about the validity of theMemorandum of Marriage and the certificate of marriage from theHindu Religious Priest provided as proof of the marriage between theapplicant and Mr Jingar?(e) Was the Tribunal's decision unreasonable in that it relied on unclearcopies of the Memorandum of Marriage and the Certificate from theHindu Religious Priest?[40] Although these questions of law do not expressly relate to an appeal onhumanitarian grounds, counsel for Ms Patel has confirmed that an appeal from thefindings of the Tribunal on that aspect is nevertheless pursued.23 She says that thefindings in relation to the fraudulent marriage, and reliance on hearsay evidence,informed the Tribunal's decision on humanitarian grounds and to that extent theTribunal erred.[41] The five questions posed by Ms Patel involve overlapping factors. I considereach of them under the following sub-headings:(a) Is it seriously arguable that the Tribunal erred in law by concluding thatrelevant information had been concealed?(b) Is it seriously arguable that the Tribunal erred in law by concluding thatMs Patel's marriage to Mr Jingar was genuine?[42] For completeness, I note that Ms Patel indicated that she intended to seek leaveto adduce further evidence on appeal in the event that the appeal was granted. Thisissue is considered in the context of the application for leave to review the Tribunal'sdecision on the grounds of counsel error in failing to adduce relevant evidence.Leave to appeal: Is it seriously arguable that the Tribunal erred in law byconcluding that relevant information had been concealed?[43] Ms Patel's first proposed appeal ground challenges the Tribunal's finding thatMs Patel had concealed relevant information, namely the divorce proceeding.[44] Counsel for Ms Patel submits that it is seriously arguable that the Tribunal'sfindings are unreasonable because of the conclusions the Tribunal reached about thevalidity of the marriage to Mr Jingar. That challenge is an attack on the Tribunal'sfactual findings and its approach to the evidence. Those factual and evidentialchallenges are addressed in the following section.23 Counsel for the Minister contended that the application for leave was only in respect of theTribunal's conclusion on the appeal on the facts and accordingly did not address the humanitariangrounds in her written submissions. The application for leave to appeal is not expressly limitedto the Tribunal's decision on the appeal on the facts. One of the stated grounds is that the questionsof law relate to "exceptional circumstances". I have therefore approached the leave to appealapplication as relating to the Tribunal's decisions on both the appeal on the facts and the appealon humanitarian grounds.[45] The first proposed ground of appeal also raises issues about the legal test whichapplies in an appeal on the facts under s 202(ca) of the Act. In particular, it raisesquestions about the meaning of "relevant information" and "concealed" in that sectionand in s 158(1)(b)(ii) of the Act.[46] I start with the meaning of "relevant". Section 58(3) of the Act obligesapplicants to inform INZ of any relevant fact if that fact may affect the decision on theapplication or a decision to grant entry permission in reliance on the visa for whichthe application is made.[47] The fact of the divorce proceedings was relevant to the validity of Ms Patel'smarriage to Mr Jingar. That marriage was relevant to whether the relationship betweenMr and Mrs Patel was genuine and stable. Whether the marriage was obtained byfraud or not, the divorce proceedings was a fact which may have affected the decisionon the residence application. Accordingly, it is not seriously arguable that the Tribunalerred in determining the divorce proceedings to be relevant information.[48] The next question concerns the meaning of "concealed" in s 158(1)(b)(ii) ands 202(ca) of the Act. Ms Patel contended before the Tribunal that she had disclosedthe fact of the divorce proceedings. That was rejected by the Tribunal and that findingis not challenged in this Court. For the purposes of this leave application therefore, itis not in dispute that Ms Patel did not disclose the divorce proceeding.[49] Neither counsel referred me to any cases where the meaning of "concealed" inss 158 (1)(b)(ii) and 202(ca) had been specifically considered. In Pal v Minister ofImmigration, Asher J reviewed a line of authority concerning the mens rea elementrequired under s 158(1)(b) and its equivalents in other legislation.24 On the basis ofthat line of authority, Asher J concluded that a subjective element was not required inorder to satisfy the matters set out in s 158(1)(b). However, that case, and those thatthe Judge reviewed, were concerned with fraudulent or forged information, oromissions that rendered the information provided misleading. There was no specific24 Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240 at [45]–[52]; Rajan vMinister of Immigration HC Auckland M1151/94, 31 July 1995 at 11; Zheng v Attorney-GeneralHC Wellington AP39/90, 14 May 1993 at 8; Ansell v Minister of Immigration [2001] NZAR 999(HC) at [42].consideration of the meaning of "concealed" in either s 158(1)(b) or s 202(ca) in anyof those cases.[50] The courts have traditionally taken a robust approach to non-disclosure ofrelevant information. In Sidhu v Chief Executive of the Ministry of Business,Innovation and Employment, Moore J concluded that a failure by the plaintiff todisclose her intention to meet, marry and cohabit with a man whom it was arrangedshe would marry, and who was unlawfully in New Zealand, was a departure from theduty of candour expected of applicants for visas. Moore J held that the fact of herintention to marry the man in question would have been relevant to an immigrationofficer's assessment of an application for a visa.25[51] Similarly, in Joseph v Minister of Internal Affairs, Lang J held that theapplicant's failure to disclose convictions in another country because he thought theywere not relevant as they had been expunged, constituted "wilful" concealment ofrelevant information for the purpose of s 17(2) of the Citizenship Act 1977. Theplaintiff's suggestion that he thought the information was irrelevant was unconvincingbecause the application form which he was required to fill in required him to discloseany court convictions, legal actions or investigations, whether in New Zealand oroverseas.26[52] The 2015 amendments to s 158 placed even further emphasis on full andaccurate disclosure regardless of fault or intention. Those amendments broadened thegrounds on which a residence class visa holder can be held liable for deportation. Inparticular, s 158(1)(b), which previously triggered deportation liability where aperson's residence class visa or entry permission was "procured" through theconcealment of relevant information, was altered so as to trigger liability simply whereany relevant information was concealed.[53] In reliance on these authorities and legislative amendments, counsel for theMinister submits that if an applicant ought reasonably to have contemplated that25 Sidhu v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZHC2841, [2014] NZAR 1371 at [51] and [66]–[70].26 Joseph v Minister of Internal Affairs [2012] NZHC 49, [2012] NZAR 179 at [53]–[54].information may be relevant to their application and nonetheless decides not todisclose it, he or she will have "concealed" relevant information for the purpose ofs 158(1)(b)(ii). On that basis, counsel submits that it is not seriously arguable that theTribunal erred in concluding that the information had been "concealed".[54] There is considerable merit in the Minister's formulation of the test.Nevertheless, I consider it seriously arguable that the Tribunal erred. The Tribunal didnot expressly consider the required knowledge or intent for information to have been"concealed". It did not specifically consider this issue in light of the disclosure madeby Ms Patel of the primary relevant fact (namely the marriage), and her firmly heldview that the marriage to Mr Jingar was obtained by fraud. The Tribunal appeared tosimply equate non-disclosure with concealment. In that respect, I consider it isseriously arguable that the Tribunal erred.[55] Furthermore, it is seriously arguable that any error in this respect tainted theTribunal's assessment of exceptionality for the purposes of the appeal on humanitariangrounds. The Tribunal found that the broader context in which the information was"concealed" was relevant to the humanitarian appeal.27 However, the Tribunal did notexpressly consider the circumstances in which Ms Patel "concealed" relevantinformation, and did not therefore turn its mind to whether Ms Patel had acteddeceitfully, deliberately or innocently in failing to disclose the divorce proceeding.[56] These were factors which the Tribunal, and Court, had specific regard to inassessing the humanitarian grounds of appeal in Pal v Minister of Immigration.28 Iconsider that it is seriously arguable that Ms Patel's knowledge and intent are factorsrelevant to the assessment of the exceptional circumstances of a humanitarian nature,and that the failure to take them into account is an error of law.[57] In summary, I consider it is seriously arguable that the Tribunal erred by failingto consider Ms Patel's knowledge and intent in not disclosing the divorce proceedingsin circumstances where she had made disclosure of a key relevant fact (namely themarriage). That alleged error is relevant to the assessment of whether information has27 Patel v Minister of Immigration [2017] NZIPT 600365 at [71].28 Pal v Minister of Immigration [2013] NZHC 2070 at [21]–[33].been concealed for the purposes of an appeal on the facts under s 202(ca) and whetherthere are exceptional circumstances of a humanitarian nature for the purposes of anappeal under s 207. These are questions of law which go beyond the facts of this caseand have general or public importance. I intend to grant leave to appeal accordingly.The questions on which I intend to grant leave are set out at the end of this judgment.Leave to appeal: Did the Tribunal err by concluding that Ms Patel's marriage toMr Jingar was genuine?[58] Each of Ms Patel's proposed grounds of appeal challenge, in one way oranother, the Tribunal's findings regarding the validity of her marriage to Mr Jingar.[59] Counsel for the Minister submits that none of the proposed grounds of appealare seriously arguable because findings about the validity of the marriage to Mr Jingarwere not material to the Tribunal's decision. On the Minister's case, even if theTribunal erred in its conclusions about the marriage (which is denied), such an errordid not affect the Tribunal's decision.[60] It is difficult to ascertain precisely how the question of the validity of themarriage impacted on the Tribunal's decision. However, I consider it to be seriouslyarguable that it at least coloured its decision on whether information had been"concealed" for the purposes of the appeal on the facts.[61] In addition, a conclusion that the marriage was genuine and not obtained byfraud is likely to have informed the Tribunal's assessment of whether there wereexceptional circumstances of a humanitarian nature. A finding that the marriage hadbeen obtained by fraud, or that there was merit in Ms Patel's contentions, may wellhave led to a different assessment of those circumstances.[62] Therefore, to the extent that there might have been an error in the Tribunal'sconclusions regarding the validity of the marriage, it is seriously arguable that such anerror was material to the Tribunal's determination under both heads of appeal. I haveproceeded to consider Ms Patel's challenges to the Tribunal's factual findings on thatbasis.[63] Ms Patel alleges that the Tribunal erred by taking into account Mr Tripathi'sevidence, which she characterises as "unreliable third hand hearsay evidence". Shesays the reliance on this evidence was contrary to the principles and purposes of theEvidence Act 2006.[64] Clause 8 of sch 2 to the Act provides that the Tribunal may receive as evidence"any statement, document, information, or matter that in its opinion may assist to dealeffectively with the subject of the proceedings before it, whether or not it would beadmissible in a court of law". To the extent that there is any inconsistency betweenthis provision and the Evidence Act, then the provisions of the Immigration Actprevail, unless the Evidence Act provides otherwise.29 The Tribunal's wide powers toreceive any information unconstrained by the rules of evidence have been confirmedin decisions of this Court.30[65] In any event, I do not consider the Tribunal's consideration of this evidencewas a departure from the principle of fairness reflected in s 6(c) of the Evidence Act.The Tribunal expressly acknowledged that Mr Tripathi's evidence was hearsay,31 andaccordingly relied on other evidence which it considered supported the validity of themarriage. If Ms Patel disputed this evidence, then it was incumbent on her to producethe necessary evidence to do so. In light of the wide powers under cl 8, and theTribunal's acknowledgement of the character of the evidence, I do not consider itseriously arguable that the Tribunal erred by taking Mr Tripathi's evidence intoaccount.[66] Next, Ms Patel says the Tribunal erred by not seeking further evidence,including forensic evidence, about the validity of the marriage and marriagedocuments. She acknowledges that s 229 of the Act does not oblige the Tribunal tomake enquiries,32 but she relies on the decision of Palmer J in Wu v Minister of29 Evidence Act 2006, s 5(1).30 See AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [8];Wu v Minister of Immigration [2016] NZHC 3194 at [63].31 At [61].32 Section 229(1) enables the Tribunal to require the chief executive to seek and provide informationrelevant to an appeal or matter. However, s 229(3) confirms that no party to the appeal or mattermay request the Tribunal to exercise its powers under that section.Immigration, which, she submits, leaves open the possibility that there will be a dutyto enquire further in some cases and in respect of some types of information.33[67] At issue in Wu was the Tribunal's decision on a humanitarian appeal about theinterests of a child (who was a New Zealand citizen) if she and her family weredeported to China. Palmer J found that the direction in art 3(1) of the United NationsConvention on the Rights of the Child to consider the best interests of the child as aprimary consideration in actions by public and administrative bodies concerningchildren, heightened the Tribunal's concern to make the right decision in the exerciseof its discretion. In at least those limited circumstances, Palmer J found that theTribunal had a legal duty to consider the "foreign law and legislative facts upon whichit has previously relied in its decisions, as to the implications of deportation on aNew Zealand citizen child's rights and interests".34[68] The decision in Wu has been appealed to the Court of Appeal but the appealhas not yet been heard. Assuming (without deciding) that a duty to seek furtherinformation does arise in some cases, I do not consider it is seriously arguable that itdoes so in this case. The further information which Ms Patel says the Tribunal shouldhave sought does not concern the best interests of a child. Nor does it concernquestions of foreign law or legislative facts. The further information is limited to thefactual context of Ms Patel's case, and is not information which might be said toinform the Tribunal's application of law and policy. In this case, the Tribunal exercisedits discretion to instruct agents to make enquiries regarding the marriage and thedivorce proceedings. Ms Patel seeks to push the Tribunal further to effectivelyundertake an investigation into matters of fact relevant to the genuineness of themarriage and marriage documents.[69] I consider that a duty to enquire further in these circumstances would beinconsistent with s 226 of the Act. That section makes it the responsibility of anaffected person to establish his or her claim and to ensure that all information, evidenceand submissions are provided to the Tribunal before it makes its decision on the appeal.It would also render s 228(2) of the Act, which provides that the Tribunal is not obliged33 Wu v Minister of Immigration [2016] NZHC 3194 at [65].34 Wu v Minister of Immigration [2016] NZHC 3194 at [66].to seek any information or evidence although it may do so, essentially redundant. Iam satisfied that it is not seriously arguable that the Tribunal erred in this respect.[70] Ms Patel also submits that the Tribunal erred in considering the marriagedocuments, that is the memorandum of marriage and the certificate from the HinduReligious Priest. She submits that the Tribunal did not consider the signatures on thesedocuments when it is clear from the face of the documents that they may have beenforged.35 Further, she says the Tribunal's decision was unreasonable in that it reliedon unclear copies of these documents.36[71] It is not apparent that the Tribunal's attention was specifically drawn to thedifferent signatures on the face of the marriage documents, or that better copies of thedocuments were provided at the hearing. But even if its attention was so drawn, theTribunal expressed a preference for the evidence of Mr Tripathi as to the genuinenature of the marriage documents. If Ms Patel wished to challenge that conclusion, orto establish that the signatures were forged, then she had to adduce the necessaryevidence to support her claim. In the absence of such evidence, the Tribunal'sconclusions regarding the marriage documents cannot be regarded as unreasonable.This proposed ground of appeal is not seriously arguable.[72] Finally, although it was not the subject of a proposed ground of appeal, counselfor Ms Patel submitted that the Tribunal's conclusions that a lawyer is unlikely to haveadvised someone to commence divorce proceedings, was unreasonable. I agree thatconclusions drawn from assumptions about the advice that a New Zealand lawyerwould likely give may be of little assistance. However, Ms Patel has not producedany evidence to suggest that the conclusion drawn by the Tribunal was wrong, or thata lawyer in India may well have given the advice that Ms Patel says she received. Inthe absence of such evidence, I am not satisfied that the Tribunal's assumptions werein error, or that any error it made was material to its decision.[73] In summary, I am not persuaded that it is seriously arguable that the Tribunalerred in its assessment of the evidence or that any error that it made was so material35 Appeal ground (b).36 Appeal ground (e).as to amount to an error of law. The application for leave to appeal on these groundsis declined.Leave to review: legal principles and application[74] Ms Patel also seeks leave to review the Tribunal's decision. That applicationis governed by s 249 of the Act. In determining whether to grant leave, the Court musthave regard to:37(a) whether review proceedings would involve issues that could not beadequately dealt with in an appeal against the final determination of theTribunal; and(b) if paragraph (a) applies, whether there are seriously arguable issues38which by reason of their general or public importance or for any otherreason, ought to be submitted to the High Court for review.[75] As already noted, there is a debate in this Court about the scope of the "anyother reason" ground for leave to review. In Kumar v Minister of Immigration, theCourt of Appeal referred to this debate but declined to consider it in the context of thatcase.39 For the purposes of this application, I take into account that this ground forleave to review may not be as restrictive as the equivalent ground for leave to appeal.[76] Ms Patel's application for leave to review the Tribunal's decision proceeds onthe following grounds:(a) That the Tribunal erred in that it formed a closed mind to the claim bythe applicant that she did not marry Mr Hardik Narivadan Jingar andthat the Indian Memorandum of Marriage and Certificate of marriagefrom the Hindu priest showing that she married Mr Jingar wereacquired by forgery;(b) That there was unfairness to the applicant in that her legalrepresentative before the Tribunal did not present, or seek the37 Section 249(6).38 Panchal v Minister of Immigration [2017] NZHC 2080 at [20]; Allada v Immigration andProtection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36]; Kumar v Minister ofImmigration [2016] NZHC 1593 at [35].39 Kumar v Minister of Immigration [2016] NZCA 492 at [7].following information, resulting in crucial evidence not beingprovided to the Tribunal:(i) Emails between Mr Hardik Narivadan Jingar and the staff ofthe Ministry of Business Innovation and Employment,alleging that he was the father of the applicant's daughterwhen the applicant was not in India, nor close to India, whenher daughter was conceived;(ii) Forensic analysis of the signatures in the Memorandum ofMarriage and the Certificate from the Hindu priest whoofficiated the marriage; and(iii) Evidence from the lawyer that the applicant sought advicefrom in India, or evidence from another lawyer in India, aboutthe plausibility of the statement made by the applicant that shewas advised to file for divorce from Mr Jingar rather thanhave the marriage to Mr Jingar declared null and void.[77] Both questions are considered below.Leave to review: Is it seriously arguable that the Tribunal erred by forming a"closed mind" as to the genuineness of the marriage to Mr Jingar?[78] Ms Patel submits that the Tribunal failed to properly examine the marriagedocuments because it accepted that the marriage was genuine without criticallyexamining Ms Patel's claim that it was not.[79] It cannot be seriously argued that the Tribunal approached the decision with aclosed mind. The Tribunal weighed all the evidence put before it which was relevantto the validity of the marriage. In any respect, this question does not raise any issueof general or public importance, nor any issue that ought to be submitted to this Courtfor review. The application for judicial review on this question is declined.Leave to review: Is it seriously arguable that there was counsel error causingunfairness to Ms Patel?[80] Counsel for Ms Patel submits that her legal representative at the Tribunalhearing did not put forward crucial evidence relating to the validity of the marriage.She submits that this evidence was important to her case and would have had a bearingon the decision reached by the Tribunal. The evidence which she says should havebeen put before the Tribunal is listed in the proposed ground for review (quoted at[76]).40[81] This Court has acknowledged that it is possible for counsel error in failing tocall important evidence causing procedural unfairness to be a ground for review.However, such cases are regarded as exceptional and they have generally involvedcases of claimed refugee status.41 Accordingly, whether counsel error causingprocedural unfairness is a ground of review in deportation cases involves a questionof law of general or public importance which extends beyond the particularcircumstances of Ms Patel's case.[82] In those cases where counsel error as a ground of review has been considered,the cogency and materiality of the evidence which was not adduced has been a criticalfactor in deciding whether to grant review. Counsel for the Minister submits that theevidence to be adduced in this case is neither material nor cogent to the Tribunal'sdecision. That is because the relevance of this evidence is to the validity of themarriage, whereas the Tribunal's decision was based on Ms Patel's failure to disclosethe divorce proceeding. Counsel also points out that there is an extremely highthreshold for adducing new evidence on appeal, and it is unlikely that such evidencewill be admitted.42[83] The materiality of the evidence which Ms Patel says should have been adducedwill depend in part on the scope of the relevant test for determining that informationhas been "concealed", and its relevance to the assessment of exceptionalcircumstances for the purposes of the appeal. I have already decided to grant leave onthose questions. Therefore, and bearing in mind the high threshold for admission ofnew evidence on appeal, I consider it appropriate for the Judge hearing and40 The evidence referred to in (a) and (b) was produced (albeit in unsworn form) at the leave hearing.A statement from Ms Patel's mother as to the advice received from the lawyer was also produced.However, there was no evidence from the lawyer who allegedly gave the advice, nor from anyother lawyer in India.41 See Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994; Isak v RefugeeStatus Appeals Authority [2010] NZAR 535 (HC).42 See AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [51]–[57]; D v Immigration and Protection Tribunal [2014] NZHC 3017 at [24]–[33].determining the appeal on those questions to decide whether the fresh evidence shouldbe admitted.[84] As previously noted, I consider it seriously arguable that the Tribunal'sconclusions regarding the validity of the marriage coloured its decision regarding the"concealment" of relevant information, and (at least implicitly) informed its decisionon whether there were exceptional circumstances of a humanitarian nature. On thisbasis, the fresh evidence may well have had a significant impact on the Tribunal'sdecision, and it is appropriate to grant leave on this question.[85] Finally, counsel has not produced any evidence from which it could be inferredthat the failure to adduce this evidence was a result of counsel error. However, counselfor the Minister did not oppose the application on this ground. Accordingly, for thepurposes of determining the leave application I have accepted counsel for Ms Patel'ssubmission that the omission was a result of counsel error. However, evidencerelevant to that alleged error will need to be produced at the review hearing if Ms Patelis going to establish that such an error resulted in procedural unfairness.Result[86] I grant leave to appeal on the following questions:(a) Did the Tribunal err by concluding Ms Patel had "concealed" relevantinformation within the meaning of s 202(ca) of the Immigration Act2009?(b) Did the Tribunal err by failing to take into account whether Ms Patelintentionally concealed relevant information when assessing whetherthere were exceptional circumstances of a humanitarian nature unders 207 of the Immigration Act 2009?[87] I grant leave to review the Tribunal's decision on the following question:(a) Did Ms Patel's previous counsel err by failing to adduce evidencerelevant to the validity of the marriage for the purposes of the Tribunalhearing? If so, did such error cause procedural unfairness?[88] The remaining parts of the applications for leave to appeal and leave to revieware dismissed.[89] I direct the applicant to file and serve an application to adduce fresh evidenceon appeal and any affidavit evidence in support by 2 May 2018. Any notice ofopposition is to be filed by 16 May 2018. The application to adduce fresh evidenceshall be determined by the Judge hearing the appeal and review applications.[90] If costs cannot be agreed then a memorandum in support may be filed within15 working days of this decision, with a memorandum in reply to be filed 10 workingdays thereafter.___________________Edwards J