KHAN v MINISTER OF INTERNAL AFFAIRS [2017] NZHC 2250

KHAN v MINISTER OF INTERNAL AFFAIRS [2017] NZHC 2250 [18 September 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS ORIDENTIFYING PARTICULARS OF APPLICANT UNTIL THE FINALDISPOSITION OF NAME SUPPRESSION APPLICATION.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-001806[2017] NZHC 2250UNDER Judicature Amendment Act 1972 and s 19,Citizenship Act 1977IN THE MATTER of an application for an application forjudicial review of a decision of theMinister of Internal AffairsBETWEEN MOHAMMED AFEROZ KHANPlaintiffAND MINISTER OF INTERNAL AFFAIRSDefendantHearing: 19 June 2017Appearances: T Mukusha for PlaintiffK G Stephen and L Kean for DefendantJudgment: 18 September 2017JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 18 September 2017 at 3.00 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate.Introduction[1] Mr Khan came to New Zealand in 2004 on a visitor's permit, obtainedresidence in 2008 and finally, in 2013, a grant of citizenship. At none of those stagesdid he disclose that in 1997 he had been convicted and imprisoned in the United Statesfor robbery and for shooting at an inhabited dwelling/vehicle.[2] The Minister of Internal Affairs has served a notice of his intention to depriveMr Khan of citizenship under s 17(2) of the Citizenship Act 1977. Mr Khan hasapplied for judicial review of the Minister's decision. It is not clear from the pleadingswhether he also intended to apply for a declaration under s 19(2) that there areinsufficient grounds to make an order for deprivation, though his counsel'ssubmissions included material consistent with such an application. Out of caution Iapproach the proceeding as raising both applications.[3] Mr Khan's position on the s 19(2) application is that, in not disclosing hisprevious convictions, he was simply following the advice of his immigration adviserand therefore did not act wilfully for the purposes of s 17(2).[4] On the judicial review application he asserts that:(a) the Minister failed to take into account the circumstances in whichMr Khan failed to disclose his conviction;(b) the Minister made an error of law in treating Mr Khan's failure todisclose the information as wilful for the purposes of s 17(2);(c) given Mr Khan's explanation for not disclosing his conviction and hisgood record while in New Zealand, the Minister's decision to issue anotice was unreasonable;(d) the Minister failed to exercise his discretion by issuing a notice under s17(2) without considering Mr Khan's submissions or investigating theadvice given by the immigration adviser.Statutory framework for deprivation of citizenship[5] Under s 8 the Minister may authorise the grant of New Zealand citizenship toa person who meets certain specified requirements. These requirements include aminimum period of residency1 and that the applicant is of good character.2 TheMinister may, however, deprive a person of the grant; s 17(2) provides that:Subject to s 19, the Minister may, by order, deprive a New Zealand citizen towhom this section applies of his New Zealand citizenship if he is satisfied thatthe registration, naturalisation, grant, or any grant requirement was procuredby fraud, false representation, or wilful concealment of relevant information,or by mistake.[6] Under s 19(2) a person in respect of whom the Minister makes an order unders 17(2) may apply to the court for a declaration that there are insufficient grounds fordepriving the applicant of citizenship:Every person upon whom a notice is served under subsection (1) may, within28 days after it is served on him, apply to the High Court for a declaration thatthere are insufficient grounds to justify the making of an order under s 16 or,as the case may require, s 17 depriving the applicant of New Zealandcitizenship; and the court may make or refuse to make such a declarationaccordingly.[7] The court's decision on an application under s 19(2) is final. However, it isopen to a person served with a s 17(2) notice to make an application for judicial revieweither as well or instead of a s 19(2) application and the decision on the judicial reviewapplication is, of course, appealable.Background[8] Mr Khan was born in Fiji in 1978. Later (it is not known precisely when), hemoved to the United States. In 1997, he was sentenced to two years' imprisonment oncharges of robbery and shooting at an inhabited dwelling/vehicle. When he wasreleased from prison deportation proceedings were started but he returned to Fijivoluntarily.1 Citizenship Act 1977, s 8(2)(b).2 Citizenship Act 1977, s 8(2)(c).[9] In late 2004 Mr Khan entered New Zealand on a visitor visa. When he appliedfor the visitor's permit he answered "No" to the following question:Have you or any person included in this application been:• convicted for any offence(s) against the law in any country [10] In the same document he signed a declaration acknowledging that heunderstood the questions and contents of the form and that the information he hadprovided was true and correct. The form included a statement by an immigrationadviser, Alistair Waite, that he had assisted in the completion of the form and thatMr Khan had agreed that the information was correct before signing the declaration.[11] In January 2005 Mr Khan applied to have his criminal record in the UnitedStates expunged.[12] On 31 March 2005 Mr Khan lodged an incomplete residence application inwhich the character section containing a question whether Mr Khan had beenconvicted or found guilty of any offence against the law in any country was left blank.[13] In May 2005, following the granting of Mr Khan's application to have hiscriminal record expunged, the relevant court records were sealed.[14] In January 2006 a different immigration consultant, Barbara Hoglund, sent acompleted character section under cover of a letter advising that the information inquestion A85 had been corrected. In the corrected form the answer "No" was givento the question whether Mr Khan had been convicted or found guilty of any offenceagainst the law in any country.[15] In his application for citizenship lodged in April 2013 Mr Khan was asked:Where have you lived in the last five years?Include places you have lived in New Zealand and overseas.[16] Mr Khan did not disclose that he had previously lived in the United States.[17] In the same form Mr Khan answered "No" to the following question:Have you ever been convicted or found guilty of any offence against the lawof New Zealand or any other country?[18] That question, however, was qualified by the following note:You do not need to include any information that is covered by the CriminalRecords (Clean Slate) Act 2004. See pg 10 of the guide for more information.[19] In 2014 the Department of Internal Affairs (DIA) made inquiries intoMr Khan's background and details of his US criminal history emerged. A DIAinvestigator, Bruce Ross, interviewed Mr Khan and put to him the allegation that hehad a US criminal conviction. Mr Khan denied that and denied ever spending time inthe US as an adult.[20] Mr Ross wrote to Mr Khan the next day advising that the DIA intended torequest that the Minister make an order depriving him of New Zealand citizenship.Mr Khan was given the opportunity to respond, which he did, though not in anysubstantive way. At an early stage he indicated that he was willing to co-operate andasked if he could voluntarily give up his New Zealand citizenship but keep hisresidency. In subsequent communications Mr Khan again challenged the source ofthe information about him, pointing out that records could be expunged in the US.[21] Eventually Mr Khan wrote to Mr Ross, apologising for having denied theallegations put to him and claiming that he had been told by Ms Hoglund that he didnot have to inform anyone of his past because his records were sealed.[22] On 14 June 2016 the DIA prepared a report in which it traversed the history ofMr Khan's visa and citizenship applications. It acknowledged the possibility that MrKhan may have received advice that he was not required to disclose expungedconvictions but concluded that:Although Mr Khan's later statements and omissions following expungementdid not procure Mr Khan citizenship or any requirement of it, they arenevertheless included for context so that it is clear that the Department is notproposing Mr Khan's deprivation simply because of two aberrant oruncharacteristic omissions in 2004 and 2005 that may be susceptible to aninnocent explanation. On the contrary, it appears Mr Khan has actively soughtto conceal his connection to the US and his US convictions in order firstly toobtain entry to New Zealand and later to convert this status to residency thenultimately into citizenship. When further questioned in 2016 about hismisleading Immigration New Zealand in his 2004 and 2005 applicationslodged before the expungement of his convictions, he advised that animmigration adviser had told him to leave his convictions out of hisapplications because his expungement meant they were no longer relevant.This explanation failed to address the question of why Mr Khan would believeit acceptable, or could have been advised, to leave out convictions inapplications lodged before his convictions were expunged and indeed beforehe had even applied for expungement in the case of the first application.[23] The DIA recommended deprivation of citizenship. The Minister subsequentlyserved a notice dated 20 June 2016 of intention to deprive Mr Khan of citizenship.The notice identified the following ground for deprivation:You were granted citizenship under section 8(1) of the Citizenship Act 1977.This included the requirement that you be entitled to be in New Zealandindefinitely.The Department of Internal Affairs and I were unaware that, when you appliedfor an original entry visa in 2004 and then a residence visa in 2005 whichwould ultimately entitle you to reside in New Zealand indefinitely, you failedto declare that you had a criminal history in the US. This entitlementsubsequently enabled you to become a New Zealand citizenship.The grounds on which I intend to make this order depriving you of your NewZealand citizenship are that you procured the grant requirement of beingentitled to be in New Zealand indefinitely through wilful concealment ofrelevant information.Insufficient grounds to justify an order?[24] Although citizenship is recognised as a fundamental human need and right3,citizenship acquired by grant is, by its nature, a privilege and one which may be takenaway. This reflects the need for the state to be able to control the process by which itconfers grants of citizenship. Randerson J summarised the position in Wang v Ministerof Internal Affairs:4Under the Act the plaintiff is only entitled to the grant if the Minister issatisfied that he has made out one or other of the statutory grounds. It isplainly important to the integrity of the process that the Minister should beable to rely on the validity of documents produced in support of such anapplication and the accuracy or otherwise of statements or representationscontained in the application or supporting documents. In many cases, theMinister and departmental officials will have no knowledge of their own as tothe accuracy of the material presented. Where the Minister reaches the view3 Yan v Minister of Internal Affairs [1997] 3 NZLR 450 at 456.4 Wang v Minister of Internal Affairs [1998] 1 NZLR 309 at 316.that the grant was procured by fraud or any other of the grounds specified ins 17(2), the Minister may then authorise the issue of a notice under s 19 ofintention to make an order depriving citizenship. In my view, theacknowledged importance of citizenship to an individual must be balancedagainst the importance of preserving the integrity of the process leading to thegrant of citizenship.[25] Mr Khan has not suggested that the information about his criminal convictionsand the time spent living in the US are not relevant. Instead, his argument was thatinsufficient grounds existed for the deprivation on the stated ground because he didnot act wilfully in failing to disclose that information.[26] Mr Khan's position is that, in completing his visitor permit application, hisdecision not to declare his convictions was made on the advice of the immigrationconsultant. In relation to the residence application Mr Khan says that he was unawarethat Immigration New Zealand had contacted the immigration consultant with a queryon why the character section of the residence application had not been completed andwas unaware of her response. In the affidavit filed in support of his application MrKhan deposed that he only had a high school education and that his failure to fullyinform the DIA of the relevant information was the result of his own ignorance of hislegal obligations.[27] In submitting that Mr Khan had not acted wilfully, Ms Mukusha relied on thedictionary definition of wilful, "intentional; deliberate" and argued that, givenMr Khan's level of understanding he cannot be taken to have acted intentionally ordeliberately and therefore did not act wilfully.[28] Clearly, wilful concealment does require deliberate action. In Joseph vMinister of Internal Affairs Lang J described it as:5 a deliberate omission of information that is likely to be relevant to thedecision the Minister is required to make Dishonesty is not, however, anessential element of making a false representation or deliberately withholdingrelevant information.[29] It is perfectly clear from Mr Khan's own statements and from the documentshe did deliberately conceal the relevant information and thereby acted wilfully for thepurposes of s 17(2). No particular level of education or knowledge of the law was5 Joseph v Minister of Internal Affairs [2012] NZHC at 49, [2012] NZAR 179 at [41] – [42].needed to answer the straightforward questions about previous convictions and timespent in the US. There is no suggestion that Mr Khan did not understand the questions.Even assuming that he did receive advice not to disclose the information,6 Mr Khansimply made the choice to follow that advice even though it was obvious that, in doingso, he would be misleading the DIA.[30] Nor is the position affected by the fact that, by the time the application forcitizenship application was made Mr Khan's previous convictions had been expunged.The notice under s 17(2) the Minister is not directed towards the application forcitizenship. Information wilfully withheld in the context of an earlier immigrationprocess may entitle the Minister to act under s 17(2) provided the citizenship wasultimately procured through the use of that document. "Procure" requires only thatthe wilful concealment be a substantial cause of the grant of citizenship; it does notneed to be the immediate or principal cause of the grant being made.7[31] The present case has parallels with Rajan v Minister of Internal Affairs. Theground of deprivation in that case was mistake as to whether the applicant had fulfilledthe minimum residency requirement. That requirement was treated as being satisfiedin part by a period of Australian residence. But the applicant's Australian residencepermit had been obtained on the basis of her husband's residence permit which(unknown to her) had been obtained by fraud. The citizenship grant was thereforeheld to have been procured by the mistaken belief she fulfilled the minimum residencyrequirements.[32] Mr Khan's application for citizenship similarly depended on proof by him ofthe residency requirements in s 8(2)(b). It is beyond dispute that Mr Khan obtainedboth his visitor permit and residence by concealing relevant information, namely thathe had criminal convictions in the United States. The fact that Mr Khan may havewilfully concealed relevant information in reliance on advice of an immigrationadviser does not detract from the fact that, by doing so, his grant of citizenship wasprocured by fraud. Even if Mr Khan himself was unaware of the misstatements in theresidence application as he claims, residence was still procured through the wilful6 There must be some doubt over this if only because Mr Khan only refers to advice given byMs Hoglund but it is Mr Waite who is named on the visitor's permit application.7 Rajan v Minister of Internal Affairs HC Auckland M1040/95, 5 November 1996; Joseph v Ministerof Internal Affairs, above n 5.concealment of relevant information; it is well established that a grant of citizenshipprocured through the use of fraudulent documents is liable to be withdrawn even wherethe applicant was unaware of that fact.8[33] It follows that Mr Khan was not in lawfully in New Zealand when he made hiscitizenship application and therefore could not have satisfied the minimum residencyrequirements at the time he applied for citizenship. I am not satisfied that insufficientgrounds exist for the s 17(2) notice to be served and decline to make a declarationunder s 19(2) to that effect.Judicial reviewFailing to take relevant consideration into account weight given to relevant factors[34] Ms Mukusha, for Mr Khan, argued that the Minister failed to take into account(1) Mr Khan's explanation for not disclosing the information; (2) the immigrationadviser's conduct; (3) the fact that Mr Khan had applied for expungement of hisconvictions in the US when he applied for citizenship; (4) Mr Khan's limited level ofeducation; and (5) Mr Khan's behaviour as a good citizen during the time he has beenhere. She also submitted that the Minister failed to give adequate weight to Mr Khan'sregret at his past actions and his law-abiding life in New Zealand.[35] It will be apparent from my earlier discussion that Mr Khan's modest level ofeducation is not a relevant factor. I am satisfied that all the other matters were takeninto account. The Minister made his decision on the basis of the DIA's 14 June 2016report. That report fully canvasses Mr Khan's criminal history, his application forexpungement of that history, his response when questioned, including his assertionthat his immigration advisor told him not to disclose the information, his regret at pastactions and the fact that he had lived in a law-abiding way in New Zealand for tenyears and would be seriously disadvantaged if deprived of his citizenship. TheMinister therefore had before him all the relevant information about Mr Khan'ssituation and it is to be inferred that he acted in the knowledge of that information.8 Heng v Minister of Internal Affairs HC Auckland M616/95, 24 April 1996; Wang v Minister ofInternal Affairs [1998] 1 NZLR 309 at 314–315.[36] The weight given to any of these factors is a matter for the Minister and willnot justify impugning a decision unless it can be said to have produced a decision thatis unreasonable in the Wednesbury sense, being so unreasonable that no reasonabledecision-maker could have made it. That is clearly not the case here.9Error of law – meaning of "wilful"[37] Pleaded as a separate ground, Mr Khan alleged that the Minister failed to applythe law correctly by failing to engage sufficiently with the term "wilful". This groundis effectively answered by my earlier discussion in the context of the s 19(2)application. There is no question that Mr Khan's deliberate withholding of relevantinformation was wilful for the purposes of s 17(2) and the Minister made no error inthis regard.Failing to inquire into the conduct of the immigration agent[38] The final ground of unreasonableness pleaded was the failure of the Ministerto have made a "robust inquiry" into the conduct of Mr Khan's immigration adviser.The Minister was under no obligation to make any such inquiry. In any event, it isclear from my earlier discussion that even if Mr Khan received advice of the kind heclaims the outcome would be the same. Mr Khan cannot rely on advice given by athird person, even a professional adviser, as justification for deliberately withholdingrelevant information.Result[39] I am satisfied that:(a) there are sufficient grounds for the notice issued under s 17(2) so thatthe s 19(2) application fails;(b) none of the grounds raised on the judicial review application discloseerror or unreasonableness by the Minister. That application also fails.9 See for example AI v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR1471 at [49].[40] I was not addressed on the issue of costs. Counsel may address that issue bymemoranda filed on behalf of the defendant within 14 days, the plaintiff within 21days, with any reply by the defendant within 28 days.____________________P Courtney J