HAO V MINISTER OF INTERNAL AFFAIRS HC AK CIV-2009-404-005610

HAO V MINISTER OF INTERNAL AFFAIRS HC AK CIV-2009-404-005610 7 September 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-005610UNDER Section 19(2) of the Citizenship Act 1977 IN THE MATTER OF an application for judicial review under the Judicature Amendment Act 1972 BETWEEN PING HAO Plaintiff AND MINISTER OF INTERNAL AFFAIRS Defendant Hearing: 30 July 2009 Counsel: R E Harrison QC for Plaintiff H S Hancock for Defendant Judgment: 7 September 2009 at 4:00pmRESERVED JUDGMENT OF HUGH WILLIAMS J.This judgment was delivered by The Hon. Justice Hugh Williams on7 September 2009 at 4:00pmpursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy RegistrarA The plaintiff's cause of action seeking a Declaration that there are insufficient grounds to justify the making of an order depriving her of her New Zealand citzenship is dismissed. B Her alternative cause of action for judicial review is also dismissed. C Costs are to be dealt with in accordance with para [112].____________________________________________________________________Introduction[1] The plaintiff, Ms Hao, was granted New Zealand citizenship under s 8(1) of the Citizenship Act 1977 1 pursuant to a letter dated 1 September 2004 and a formal confirmation ceremony on 8 December 2004. [2] On 21 July 2008 the then Minister of Internal Affairs gave her notice under s 19 of his intention to deprive her of her New Zealand citizenship saying:I consider that I have grounds for making such an order pursuant to section 17 of the Citizenship Act 1977 as (a) you acquired New Zealand citizenship by grant pursuant to the Citizenship Act 1977; and (b) that grant was procured by fraud, false representation, wilful concealment of relevant information, or by mistake. Your application for citizenship was made and considered under section 8 of the Citizenship Act 1977. One of the prerequisites pursuant to that section is that you satisfy me that you are of good character. The ground upon which I intend to make this order is that the Department of Internal Affairs and I were unaware of your true circumstances at the time you received the grant of citizenship. Prior to submitting your application for New Zealand citizenship you committed the offences of making a false statement in an application for an Australian passport, and making a false statement in the course of supporting an application by another person for an Australian passport. You failed to declare this information to the Department. Had the Department of Internal Affairs or I been aware of this information you would not have been considered to have satisfied the good character requirement for New Zealand citizenship. If I had been aware that you were obtaining citizenship through fraud, false representation, wilful concealment of relevant information or by mistake you would not have been granted citizenship.[3] This application for judicial review asserts there are insufficient grounds to deprive Ms Hao of her New Zealand citizenship because, even if she were guilty of1 All statutory references in this judgment are to the Citizenship Act 1977 unless otherwise stated.the facts constituting the Australian offences mentioned in the letter, when she lodged her citizenship application on 6 May 2004 she was unaware she had committed any offences or of anything adversely reflecting on her good character. Thus, the right to revoke her grant of citizenship under s 17(2) for "fraud, false representation or wilful concealment of relevant information or by mistake" did not arise. [4] She also asserted the Minister's notice was insufficiently particular as to the grounds on which he proposed to proceed – abandoned at the hearing - the Minister's advisers insufficiently considered that she would become stateless if deprived of New Zealand citizenship and insufficiently considered whether she was guilty of wilful concealment. Also, they did not properly weigh her Australian offending against her overall good conduct and character. [5] She also seeks a declaration from this Court under s 19 that there are insufficient grounds to deprive her of her New Zealand citizenship.Facts[6] Ms Hao was born on 19 June 1963 in China, the youngest of five children. Her family suffered terribly, first at the hands of the Maoist régime, and secondly, with consequential family tragedies. Her grandfather was executed by the Maoists. Her father suicided later. These events led Ms Hao to resolve to try to implement the promise she made her father to find a way to move the family overseas to better themselves. [7] Ms Hao arrived in Australia on 22 November 1997 to investigate immigrating to that country. She remained there until 1 November 2000 when she returned to China, using her Chinese passport. It now appears from an Australian Federal Police statement put in evidence that on 13 April 2000 an application was made for Australian passports for her daughter, her niece and for her in the "false name of Pamela Hao". Hers had a birth-date differing from her own supported by an Australian birth certificate in the false name but with a photograph of Ms Hao. The Australian Police say their inquiries suggest the birth certificate utilized to supportthe Australian passport application was a forgery. Ms Hao said in evidence in this case that she was "completely unaware that the forged birth certificates had been used to support the passport applications". [8] An Australian passport in the false name was later issued and she used it to travel out of Australia to Taiwan. The passport was seized by Australian Customs when Ms Hao tried to use it to re-enter Australia on 16 July 2000. [9] Notwithstanding the confiscation, the Australian Police say Ms Hao applied for a replacement passport in the false name on 21 September 2000 using the same birth certificate and photograph. No passport was issued. Ms Hao said she neither made nor authorized her then immigration agent, Ms Liu, to make the second passport application, and that she was unaware of it until her later apprehension by Australian authorities. [10] She then made inquiries about obtaining residence in New Zealand and came here first on 6 May 2001 with her daughter and, later, her husband and niece and, now, mother. [11] Ms Hao and her husband were married in 1988 but separated in October 2005. He has permanent residence in New Zealand but left this country at the end of 2005 and does not feature further in this case. [12] On 6 May 2004 Ms Hao applied for New Zealand citizenship, accompanying her application with other supporting documents. The application was signed as a declaration under the Oaths and Declarations Act 1957. [13] In the application she answered "No" to questions whether she ever had a conviction, traffic infringement "or any other infringement in New Zealand or overseas" and whether she was or had been "involved in any legal action or investigation". She listed only her Chinese passports in response to a question about disclosing "all your passports" and travel documents held because she said she assumed the false Australian passport in the name of "Pamela Hao" – which is her adopted English name - had been cancelled on confiscation.[14] On 9 March 2005 Ms Hao travelled to Australia to visit her sister, Mrs Cawthorne, travelling on her New Zealand passport in her correct name, issued to her as a result of the grant of New Zealand citizenship three months previously. She was detained at the border and interviewed about her Australian passport. With the assistance of a Mandarin interpreter she explained the background, including that she had paid at least US$50,000 for the Australian passport, and another US$50,000 for Australian passports for her daughter and niece. [15] She was charged with two counts each of making a false statement in support of a passport application and making a false statement to obtain the passport. Australian Police successfully opposed bail. Ms Hao pleaded guilty after legal advice it was the best thing for her to do. She expected to be treated leniently but instead, on 16 March 2005, was sentenced to concurrent terms of six months imprisonment on each charge. An appeal was dismissed on 18 April 2005. She was returned to New Zealand on 8 September 2005 on completion of her sentence.Statutory Background[16] To set the stage against which the facts and counsel's submissions are to be viewed, it is helpful to set out the applicable statutory provisions. Section 8(1)(d) and (2) for the purposes of this case relevantly read:(1) The Minister may authorise the grant of New Zealand citizenship to any person, including a person who may be a New Zealand citizen by descent, who— (d) satisfies the Minister that he or she meets each of the requirements specified in subsection (2). (2) The requirements referred to in subsection (1)(d) are as follows: (a) that the applicant is entitled in terms of the Immigration Act 1987 to be in New Zealand indefinitely: (b) that the applicant was present in New Zealand— (i) for a minimum of 1 350 days during the 5 years immediately preceding the date of the application; and(ii) for at least 240 days in each of those 5 years,— being days during which the applicant was entitled in terms of the Immigration Act 1987 to be in New Zealand indefinitely: (c) that the applicant is of good character: (d) that the applicant has sufficient knowledge of the responsibilities and privileges attaching to New Zealand citizenship: (e) that the applicant has sufficient knowledge of the English language: (f) that the applicant intends, if granted New Zealand citizenship, either— (i) to continue to reside in New Zealand; or (ii) to enter into or continue in Crown service under the New Zealand Government, or service under an international organisation of which the New Zealand Government is a member, or service in the employment of a person, company, society, or other body of persons resident or established in New Zealand[17] Section 17 (2) and (3) read:17 Deprivation of New Zealand citizenship in case of fraud, etc.... (2) Subject to section 19 of this Act, the Minister may, by order, deprive a New Zealand citizen to whom this section applies of his New Zealand citizenship if he is satisfied that the registration, naturalisation, [grant, or any grant requirement] was procured by fraud, false representation, or wilful concealment of relevant information, or by mistake. (3) The Minister may not deprive a person of New Zealand citizenship under subsection (2) if— (a) the citizenship was acquired by mistake; and (b) to deprive the person of that citizenship would leave the person stateless.[18] And s 19(1) (2) (6) (7) and (9) relevantly read:19 Court review of grounds for depriving person of citizenship(1) Before making an order under section 16 or section 17 of this Act depriving any person of New Zealand citizenship, the Minister shall serve on that person a notice— (a) Stating that he intends to make such an order; and (b) Citing the section of this Act under which he considers that he has grounds to make such an order; and (c) Specifying the grounds on which he intends to make such an order; and (d) Advising the person of his right to have the matter reviewed by the Court in accordance with the succeeding provisions of this section. (2) Every person upon whom a notice is served under subsection (1) of this section may, within 28 days after it is served on him, apply to the High Court for a declaration that there are insufficient grounds to justify the making of an order under section 16 or, as the case may require, section 17 of this Act depriving the applicant of New Zealand citizenship; and the Court may make or refuse to make such a declaration accordingly. (6) Subject to the succeeding provisions of this section, the procedure in respect of a application under this section shall be in accordance with the rules of Court. (7) When hearing any application under this section the Court may receive as evidence any statement, document, information, or matter that, in the opinion of the Court, may assist it to deal justly with the application before it, whether or not the same would be otherwise admissible in proceedings before the Court. (9) The determination of the High Court on any such application shall be final.Departmental Inquiries and Evidence[19] On 24 January 2006 the Department of Internal Affairs wrote to Ms Hao advising her it might request the Minister to make an order depriving her of New Zealand citizenship and setting out the circumstances relating to her obtaining the Australian passport in the false name and the subsequent convictions. The letter advised that when granting New Zealand citizenship the Minister was unaware of her"past criminal activities and its detrimental effect on your ability to clearly fulfil the character requirement", and pointed to the omission of any mention of the use of the forged Australian birth certificates and passports at the time she made the statutory declaration forming part of the New Zealand citizenship application. The letter said it was therefore the Department's view that her New Zealand citizenship was obtained by a false representation or intentional concealment of relevant information and sought her comment including an explanation of how the Australian passports for her, her daughter and her niece had been obtained. [20] Ms Hao replied at length through her solicitors on 28 March 2006, denying her grant of citizenship was obtained as a result of any of the grounds in s 17. [21] Over some nine pages, the letter set out Ms Hao's full explanation as to how she came by the false Australian passports. It is unnecessary to rehearse the detail. It is sufficient to note Ms Hao saying the only documents she provided were genuine photographs, and that her instructions to her various immigration agents were to obtain genuine passports. That section of the letter said:Convictions/charges & investigations against our clientWhen she completed her Form with her New Zealand Agent in 2004 our client was unaware of any convictions, charges or investigations against her. This is why she declared on her form that she did not have any convictions. We note that the Form specifically asked details of our client's convictions and traffic infringements to which our client replied 'No'. The Form also asked if she was involved with any legal action or investigation to which our client replied 'No'. The recent charges laid against her were in March 2005. During the time that she completed her Form she was unaware of any investigations or charges laid against her. This means that she never misled or concealed relevant information from your department. This is because at the time of her application for New Zealand citizenship and until she was granted New Zealand citizenship our client was unaware of any such charges against her. We cannot understand as to why the department considers this to be misleading when our client was unaware of it.Completed declaration on the FormWe also note that our client then solemnly, and sincerely declared that she believed the facts of the application to be correct and solemnly declared thecontents of the Form to be true. This in fact is correct and our client did not in any way mislead or conceal relevant information from your department."[22] The letter concluded with a lengthy explanation of Ms Hao's good character, including charity and family work, with that reinforced by a large number of supporting documents. [23] A further letter was sent by Ms Hao's solicitors on 31 March 2006, again with supporting documents. [24] In this proceeding, Ms Hao's affidavit largely repeated many of the issues put forward on her behalf by her solicitors. Further, to the extent they were able to verify the circumstances relating to her obtaining the false Australian passports, her statements were supported by affidavits by her sister and her Australian brother-in- law, Mr Cawthorne. He is employed by the Australian Department of Foreign Affairs and Trade and is both a Justice of the Peace and a marriage celebrant. [25] On 22 August 2007 the Department of Internal Affairs wrote to Ms Hao's solicitors pointing out that s 17(3)(d) debars the Minister of Internal Affairs depriving a person of citizenship under subs (2) that would "leave a person stateless". Information was sought as to whether that might be the case. [26] On 3 December 2007 Ms Hao's solicitors responded with a print-out of the Nationality Law of the People's Republic of China (sourced over the Internet from the Chinese Embassy in Lithuania) and submitted its effect would be to leave Ms Hao stateless should she be deprived of New Zealand citizenship. [27] Assuming the printout is accurate - despite its roundabout provenance - the Nationality Law says that the People's Republic of China "does not recognise dual nationality for any Chinese national". It confers Chinese nationality on any person born in China of one or both Chinese national parents but also states:"Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired a foreign nationality of his own free will, shall automatically lose Chinese nationality."and"Applications for naturalization as Chinese nationals and for renunciation or restoration of Chinese nationality are subject to examination and approval by the Minister of Public Security of the People's Republic of China. The Ministry of Public Security shall issue a certificate to any person whose application has been approved."[28] Ms Hao asserted she was unaware of the falsity of the Australian passport applications being made on her behalf; that all statements in her citizenship application were correct at the time she made them; and nothing occurred between her execution of the citizenship application on 6 May 2004 and the citizenship ceremony on 8 December 2004 which she should have disclosed to the Department. She said of her Australian convictions, that:... I do not accept that those convictions, considered in the light of my explanation, mean that I am not of good character so as to warrant cancellation of my New Zealand citizenship. Nor do I accept that it follows that by pleading guilty to the Australian criminal charges, which related to events occurring almost five years earlier, I must be taken to have concealed from the Department the factual elements of the charges which the Australian Federal Police later alleged against me.[29] For the Department of Internal Affairs, the manager of its Citizenship Office, Mr May, set out the history of Ms Hao's citizenship application and the Minister's notification of his intention to consider revocation of citizenship. Mr May said: a) He became aware of her criminal offending via Interpol on 17 May 2005 and the Department commenced an investigation into the matter at that stage, leading to the correspondence earlier reviewed. He said all the material put forward on Ms Hao's behalf was carefully considered by the Department before the Minister sent his letter of 21 July 2008. He also took account of the Department's "good character" policy in its Manual. A copy of the policy was produced by consent at the hearing. b) He made the point that statelessness was only relevant under s 17(3) if citizenship was acquired by mistake. Mr May asserted such was not the case in this instance and the Nationality Law merely certified Ms Hao cancelled her household registration, not her nationality, on19 November 2007, that is, after the issue of possible deprivation of her New Zealand citizenship was raised. c) He noted Ms Hao's assertion she became shocked and distressed on receiving the Australian passports in a different name and showing a different birth date and travelling to Taiwan to test the passport's authenticity together with Ms Liu. Mr May was dismissive of the genuineness of this stratagem and suggested a preferable approach would have been to visit the local Passport Office. d) He pointed to Ms Hao taking no steps to recover the confiscated passport (despite it having cost her up to USD$100,000) in the year following her return from Taiwan. [30] On the important issue of Ms Hao's knowledge of the Australian circumstances and whether it affected her citizenship application and the possibility of revocation, Mr May said:27. I considered that by the time the plaintiff had applied for New Zealand citizenship she must have known that the Australian passports were false. I considered that there were, in general, two possible explanations for her role in the passport fraud. Either she was the unwitting victim of an unscrupulous agent. This explanation did not seem to me to rest easily with the facts, or her proficiency as a businesswoman of commercial acumen. The second explanation is that she had known from the beginning that the passports were not genuine. 28. A further possibility, which can be discounted on the evidence available to me, is that the plaintiff considered the passport to still be valid but for some unaccountable reason took no steps to recover or reapply for it. First, she did not disclose the existence of the passport on her New Zealand citizenship application. Secondly because following the events at Sydney Airport the daughter's and niece's false passports were destroyed. 29. Whether or not the plaintiff had continuing concerns about her role in the passport fraud and the possibility of enforcement action in Australia, by the time of her arrival in New Zealand in May 2001 I considered that she must have known that the passports were not genuine.30. Having reached the view that the plaintiff knew that the Australian passports were improperly obtained, I next considered whether that information was relevant in the context of her New Zealand application. In my view it clearly was. 31. New Zealand citizenship is a privilege and not a right. It is important to ensure and preserve the integrity of the grant of New Zealand citizenship that applicants disclose all relevant information from the outset and during the processing of their application. This is so they can be fairly and accurately assessed in terms of the relevant statutory requirements. 32. The Department does not have the resources to investigate fully every applicant, the information asserted by them or to go looking for concealed information. Even if it did, I consider the Government would not consider it a wise and prudent use of the public's finances. The whole citizen vetting system is therefore based on honesty by applicants. It would be demoralising for those honest applicants who had made proper disclosure to miss out on citizenship and then to see others who had concealed relevant information or ever [sic.] lied to succeed in achieving and retaining citizenship. The integrity of the system requires that applicants who conceal information or use dishonest methods do not benefit. 33. I considered the plaintiff's involvement in passport fraud in Australia was directly relevant to the question of her good character. Her failure to advise me of her involvement in false Australian passports meant that I and therefore the Minister were not put on notice of the matters that subsequently lead to the plaintiff's convictions. Those convictions were for making a false statement in an application for an Australian passport and making a false statement in the course of supporting an application by another person for an Australia passport. Past involvement in passport irregularities, which were subsequently found to be fraudulent, was in my view highly relevant and should have been disclosed so it could have been brought to the Minister's attention for his decision-making.[31] Finally, on the factual issues, Mr May put in evidence a decision of the Administrative Appeals Tribunal of Australia in Hao v Minister of Immigration and Multicultural and Indigenous Affairs [2005] AATA 11.72 delivered on 25 November 2005 which dealt with this plaintiff. Mr May said he only recently become aware of the decision. It formed no part of his recommendation of 15 July 2008 to the Minister, but he adopted the reasoning as a further basis for opposing Ms Hao's application.Evidential Objections[32] Mr Harrison QC, counsel for the plaintiff, objected, first, to a deal of Mr May's affidavit on the ground that it was irrelevant and inadmissible and, in particular, offered Mr May's conclusions on matters which, under statute, were for the Minister to decide or were ultimately for this Court's decision. He submitted the affidavit effectively read as if it were counsel's submissions. [33] Mr Harrison also objected to the production in evidence of the AATA decision on the grounds that its findings ought not to be accepted in this case as findings of fact, and in any event formed no part of the decision impugned in these proceedings. [34] Mr Hancock, counsel for the Minister, submitted Mr May was an "expert" and his evidence was admissible as an "opinion" and as an "expert opinion" or "expert evidence" under ss 14, 24 and 25 of the Evidence Act 2006. [35] As the quoted challenged passages of Mr May's affidavit demonstrate, there is a deal of weight in Mr Harrison's submissions. Because of that, the affidavit has only been taken into account in its description of factual matters and the process of consideration of Mr Hao's application for citizenship and the possibility of its revocation. Mr May's conclusions are accorded significantly less weight. That said, they do throw a certain light on what may have motivated the Minister to give Ms Hao the 21 July 2008 notice, the Minister having provided no reasons himself. [36] As far as the AATA decision is concerned, it would clearly qualify as both a "document" and a "public document" within s 4 of the Evidence Act 2006 and would accordingly be presumed authentic and able to be "offered in evidence to prove the truth of its contents" in terms of s 138. [37] Further, being an Australian public document, the AATA decision would be admissible in accordance with Australian law and would thus be admissible in New Zealand to the same extent as in Australia and for the same purpose, and would be, again, presumed authentic: ss 148 and 149 of the Evidence Act 2006.[38] All of that notwithstanding, the Court takes the view it would be unfair to the plaintiff to utilize anything more than the incontestable facts discussed by the AATA. All judgmental aspects and the AATA's conclusions are excluded. The reason is that what is first in issue in this case is whether the Minister was legally and factually justified in issuing his 21 July 2008 notice in the terms pleaded. That must focus on the facts and legal issues available to him. That did not include the AATA judgment. It was not part of the Minister's consideration and, in fairness, should form no part of this Court's consideration of that matter or under s 19. Thus the judgment should not be taken into account other than to the extent mentioned. [39] To make the position plain, reference has been made to the AATA decision to explain, for instance, the nature of Ms Hao's status in Australia and the manner of her obtaining an Australian passport, but not as to the tribunal's assessment of the merits of the issue described by the AATA: "whether Ms Hao is not of good character having regard to her past and present criminal conduct and past and present general conduct so as to cancel her sub-class 444 category visa" (para 3).Submissions[40] Mr Harrison noted Ms Hao's citizenship grant must have been as a result of the Minister being satisfied she met the criteria in s 8 and in particular the criterion in s 8(2)(c) that she was of "good character". [41] Mr Harrison initially made the point that the proceeding involved both an application under s 19(2) and an application for judicial review of the Minister's decision to set in train deprivation of the plaintiff's New Zealand citizenship. It particularly invoked the power under s 19(2) for a person such as Ms Hao to apply to this Court for a declaration that there were insufficient grounds to justify the making of an order depriving her of New Zealand citizenship. [42] The ministerial process was flawed, he submitted, because the Minister invoked all the grounds for deprivation of citizenship set out in s 17(2), fraud, false representation, wilful concealment of relevant information and mistake.[43] He submitted Ms Hao's convictions largely resulted from the actions of a dishonest immigration agent with the plaintiff being unaware of their occurrence. He stressed the convictions were entered on 16 March 2005, well after the plaintiff's citizenship application was filed and processed in May-December 2004 even though the convictions related to actions which occurred in 2000. He pointed to the lack of activity by Australian authorities after the genuine Australian passport - though issued in a false name and with a false birth date – was seized on 16 July 2000. [44] The initial Australian passport having been confiscated, Mr Harrison submitted the plaintiff was correct to answer that she did not "hold" any Australian passport at the time she filed her citizenship application. Phrasing the citizenship application in the present tense about holding a passport did not, he submitted, cover an Australian passport confiscated some four years earlier. She also correctly answered the question about "any legal action or investigation": she knew of nothing in that respect at the time of signing the citizenship application. As regards the negative answer to the question "Is there anything else we should know that may affect your application?" Mr Harrison submitted the question was vague, open-ended and required an applicant to conduct a subjective assessment – effectively to guess – what might be relevant in the view of the Department or the Ministry. [45] As this was an application for judicial review, cross-examination did not occur. Accordingly, so Mr Harrison submitted, Ms Hao's denial that her grant of New Zealand citizenship was affected by any of the statutory grounds was to be upheld. There was no direct evidence to the contrary. [46] Mr Harrison submitted a number of the s 8 "grant requirements", as that phrase is used in s 17, were incapable of being "procured" by the disentitling factors in s 17(2). He submitted it was therefore the grant of citizenship itself, rather than any requirements of the grant, which were capable of being so procured relying onRajan v Minister of Internal Affairs (HC Auckland M1040/95, 5 November 1996, Anderson J pp 7-8). That impinged on the Minister's statement in his 21 July 2008 letter that the plaintiff's grant of citizenship was procured by the s 17(2) factors not the grant requirements. He said the plaintiff's stance was that "mistake" was unavailable to the Minister as it did not involve deliberate conduct on the applicant'spart. If deprivation of the plaintiff's New Zealand citizenship was to be found, Mr Harrison submitted it needed deliberate conduct by her to be justified. [47] He further submitted that the wording of s 17(2) required satisfaction that the granted citizenship was procured by mistake not that citizenship was mistakenly granted. Thus, the mistake had to be separate from the ministerial decision to grant citizenship. In Yan v Minister of Internal Affairs [1997] 3 NZLR 450, 459–461, Hammond J held that "the Minister can hardly rely on his own mistake". To be fair to Mr Harrison, that was not a point of significant reliance on his part. [48] Addressing the form of the plaintiff's citizenship application in light of the statutory criteria for the grant of citizenship, Mr Harrison submitted the Minister was unable to point to any affirmative assertion which was untrue. Thus, he submitted, the grant could not have been procured by "false representation". Further, he submitted that "fraud", and "false representation" necessarily involved knowing presentation of forged or false documents whilst "wilful concealment of relevant information" involved passive dishonesty. In these circumstances, it was only, at most, the last ground on which the Minister could rely. [49] He submitted s 19 was procedurally unique in giving this Court power to make a declaration there were insufficient grounds to justify the making of an order depriving a plaintiff of citizenship – and making that determination final: s 19(7). That meant, he submitted, the Court's scrutiny of the grounds put forward by the Minister must be undertaken on their factual and legal merits with the ultimate burden of proof lying on the Minister and with the overall determination being that deprivation of citizenship "is not to be supported save in very clear cases". That was the phrase used in Yan (at 460) which contains an extended consideration of the reasons why citizenship is a "critically important human right". Hammond J in Yan(at 460) then continued:The Minister has asserted grounds to take the extreme step of depriving somebody of New Zealand citizenship, and, in this case, prospectively rendered somebody stateless. At the end of the day, although it would be correct to say that the applicant is obviously going to have to endeavour to demonstrate why the Minister was wrong, the ultimate burden must be on the Minister to sustain his or her decision. This is consistent, as an approach, with the view of citizenship taken under international law today: the loss ofcitizenship, as the right to have rights, is not to be supported, save in very clear cases. Reference to an "onus of proof" is not helpful in this sort of context.[50] Mr Harrison accepted that differing views had been expressed in this Court concerning the onus of proof with Potter J taking the contrary view to Yan in Lama v Internal Affairs HC AK M1268/95 8 June 1997 (relying on Heng v Minister of Internal Affairs HC AK M616/95 24 April 1996 Salmon J). In those cases matters peculiarly within the plaintiffs' knowledge were held to affect the onus. In this Court's view, the correct position is as it appears in Wang v Minister of Internal Affairs [1998] 1 NZLR 309, 316-317 later reviewed. [51] Mr Harrison pointed to Ms Hao's evidence of signing blank passport applications in good faith and giving these to Ms Liu to process. She had no part in the obtaining of forged birth certificates. Thus the criminal offending was committed by Ms Liu without the plaintiff's knowledge or consent. She only pleaded guilty because she was in custody and advised so to do. [52] He noted that the plaintiff was not aware at the time of the existence and use of the forged birth certificates. The Minister's suspicions in that regard were insufficient. [53] He pointed to the lapse of time between confiscation of the Australian passport and the plaintiff's citizenship application with inactivity on the part of the Australian authorities in the interim. After inactivity for nearly four years no inference could be drawn of "wilful concealment of relevant information". [54] He also submitted the Minister failed to address whether Ms Hao had acted wilfully. He simply crossed out "Disagree" in the Departmental report recommending "Agree/Disagree" with the action taken. He also asserted there was no evidence the Minister had properly balanced Ms Hao's evidence of good character against the acceptable evidence of bad character. [55] Mr Harrison was critical of the statement of defence raising grounds not placed before or apparently adopted by the Minister. He concluded his submissions on this aspect of the matter in the following way:68 Given the wording of section 19(1) and (2), and in particular the overall nature of the inquiry under section 19(2) just referred to, the ultimate question is not simply whether the Minister (or indeed the Court) was or is "satisfied that the grant was procured by wilful concealment of relevant information" (or any other of the specified grounds, for that matter) in terms of section 17(2). The inquiry is necessarily wider. It asks essentially whether an order depriving the applicant of his or her New Zealand citizenship is now justified on all of the material before the Court, with particular reference to the sufficiency or otherwise of the ground or grounds advanced by the Minister. 69 Where, as here, the allegation is that the section 19(2) applicant has not satisfied the good character requirement required in the case of New Zealand citizenship by grant, it is appropriate to assess the ultimate question whether deprivation of New Zealand citizenship is justified having regard to the sufficiency of the grounds advanced by the Minister, by considering not merely alleged "bad character", but also demonstrated "good character", placed on the other side of the scale.[56] Mr Harrison submitted there was no New Zealand authority on what amounted to "good character" but, admittedly in an immigration context, relied onGoldie v Minister for Immigration and Multi-Cultural Affairs [1999] FCA 1277 where the Court of Appeal of the Federal Court held (at [5] and [6]):5 The issue of central importance in this appeal is whether the Tribunal fell into error in its assessment of the appellant's want of "good character" under s 501(2)(a)(ii), ie, by reference to "the person's general conduct". The Full Court considered both these expressions in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187. At 195, it rejected the notion that a person's "general conduct" could not encompass isolated acts, saying at 195: "... We do not think there is any warrant for extracting, from the broad word `general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly." 6 The Court concluded by saying that it considered the parliamentary intention of s 501(2)(a) to be "simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories", viz, the person's past criminal conduct and all his other conduct. The Court said that the expression "good character" in the sub- section was correctly explicated by what Lee J had to say in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 - 432:"... the words `good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion. ... Notwithstanding the breach of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry. ... In the 1989 Regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed. In the 1993 Regulations such a connection is implied."[57] Mr Harrison accepted there were AATA cases where citizenship was revoked by reason of serious offending – Osorio v Minister for Immigration and Citizenship[2007] AATA 59 was an example – but he submitted that the offending in those cases was much more serious than the convictions entered against Ms Hao. Apart from her convictions and the matters leading up to them, he submitted the plaintiff had mustered and placed before the Department an impressive display of evidence of good character. [58] Mr Harrison submitted the Minister failed to take sufficient account of the plaintiff's statelessness if deprived of New Zealand citizenship. Accepting that this criterion was expressly referable only to the mistake deprivation ground in s 17(3), Mr Harrison nonetheless submitted that potential statelessness was also generally relevant to any overall consideration of the plaintiff's position: New Zealand's accession to the United Nations Convention on the Reduction of Statelessness, in force in this country since 19 December 2006, supported that submission. [59] For the Minister, Mr Hancock submitted the defendant had proved the plaintiff did not act in good faith in relation to the Australian passport: the Minister's obligation was simply to show sufficient grounds to demonstrate that a person to whom s 17 applied should be deprived of citizenship. The information available to the Minister on that question was sufficient.[60] Mr Hancock submitted the evidence did not necessarily establish Ms Hao would become stateless if deprived of New Zealand citizenship, whether on consideration of the ground being based on mistake or otherwise. He pointed to her having returned to China after the grant of the Australian passport using her Chinese passport so to do. [61] He submitted the Minister was entitled to draw reasonable inferences and conclusions from the information in the officials' reports to reach a conclusion on deprivation. There was sufficient information available to the Minister to be satisfied that the plaintiff acted knowingly in relation to the 2000 Australian passport application. [62] Similarly, there was adequate information available to the Minister to reach a view adverse to the plaintiff on the issue of good character. He submitted that under s 17 this Court's enquiry is not to review what occurred but to undertake a enquiry afresh not limited to considering whether the Minister was right or wrong. Then, under s 19, it is for the Court to determine whether the grant of citizenship was procured through any of the disqualifying criteria in s 17(2). He relied on the citizenship deprival decision of Wang where the following appears (at 316-317):While I readily accept the importance of the grant of citizenship to an individual and the seriousness of the consequences should citizenship be removed, it is important to recognise that the citizenship currently enjoyed by the plaintiff is by grant under s 8A and is not acquired by birth or descent under ss 7 and 8 of the Act. While the latter may be regarded as a right, citizenship by grant is more in the nature of a privilege. While the grant remains in force, it carries with it certain rights but it is not inalienable and may be removed if the statutory grounds are established. Under the Act, the plaintiff is only entitled to the grant if the Minister is satisfied that he has made out one or other of the statutory grounds. It is plainly important to the integrity of the process that the Minister should be able to rely on the validity of documents produced in support of such an application and the accuracy or otherwise of statements or representations contained in the application or supporting documents. In many cases, the Minister and departmental officials will have no knowledge of their own as to the accuracy of the material presented. Where the Minister reaches the view that the grant was procured by fraud or any other of the grounds specified in s 17(2), the Minister may then authorise the issue of a notice under s 19 of intention to make an order depriving citizenship. In my view, the acknowledged importance of citizenship to an individual must be balanced against the importance of preserving the integrity of the process leading to the grant of citizenship. Citizenship by grant is always subject to theundoubted statutory right of the Minister to take it away if the grounds particularised in s 17(2) are established. It is clear that the application to this Court under s 19(2) is neither an appeal from nor a judicial review in the recognised sense of any decision made by the Minister to deprive a person of citizenship. Any decision to take that step may be made by the Minister only after this Court has ruled on the application under s 19(2) and it is entirely in the discretion of the Minister as to whether any such order is made. The jurisdiction of this Court under s 19(2) is limited to making a declaration that there are insufficient grounds to justify the making of an order under s 19 or refusing to make such a declaration. In approaching the task, the Court is not bound by the strict rules of evidence (s 19(7)) and may, if necessary, hear evidence in private (s 19(8)). The decision of the Court on any such application is final (s 19(9)). It is also well established that the Court is entitled to consider all the evidence placed before it and is not limited to evidence relied upon by the Minister prior to making the decision to issue the notice under s 19(1). In my view, it is vital to keep in mind the distinction between the legal burden of proof and the evidential burden. This distinction is helpfully summarised in 17 Halsbury's Laws of England (4th ed) para 13, in the following terms: "13. Meaning and general incidence of the burden of proof.There are at least two distinct senses in which burden of proof is used, and clarity over which sense is relevant at any given time is essential. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side.'' To put the matter simply in the context of the present case, it is my judgment that the legal burden of proof remains upon the plaintiff throughout upon the well-established principle that ``he who asserts must prove''. In other words, it is for the plaintiff to prove his contention that there are insufficient grounds to justify the making of an order. This conclusion follows from the clear wording of s 19(2) which places upon the plaintiff the obligation to apply for the declaration identified in that subsection. During the hearing of the application, the evidential burden may shift from one party to another. In some cases, much will depend upon which party has the evidence in their possession or control. For example, in Heng, Salmon J commented that most of the relevant evidence was in the hands of the Minister. By contrast, inLama, Potter J noted that the majority of the evidence was in the possession or control of the plaintiff. There are obvious difficulties of proof for the Minister in the latter situation which commonly arises in immigration and citizenship cases. Even in cases of this kind, however, the Minister will no doubt be required to establish initially some reasonable basis for supposing that the statutory grounds exist.In the present case, where the status of a document is in question, the evidential burden may initially lie with the Minister to establish that a document, apparently lawful on its face, is of doubtful validity. Assuming that the Minister establishes some credible ground for attacking the validity of such a document, the evidential burden will then shift to the plaintiff to establish that the document is indeed genuine. At the end of the day, however, I am satisfied that the ultimate burden (ie the legal burden) must lie with the plaintiff to establish that there are insufficient grounds to justify the making of the order under s 17.[63] As to "good character", Mr Hancock submitted the plaintiff should clearly have disclosed her involvement in passport fraud and should have given the English names she used to obtain the Australian passport so the appropriate balancing was able to be undertaken. He noted that Wang held that the "Minister should be able to rely on the validity of documents produced and the accuracy or otherwise of statements or representations ". [64] Mr Hancock dealt extensively with the facts pointing out that, on the plaintiff's version of events, she was cheated not once but thrice by Australian immigration agents while paying a considerable sum of money to them. The trip to Taiwan to test the passport for authenticity was, in Mr Hancock's words, a "dummy run". It was inconceivable that the Australian passport episode would not have been in the plaintiff's mind when she applied for New Zealand citizenship. There was ample opportunity to disclose the circumstances and her failure so to do was open to construction as "wilful concealment". [65] Thus, the defendant had reasonable grounds, in Mr Hancock's submission, to demonstrate Ms Hao should be deprived of citizenship under s 17, particularly on the "wilful concealment of relevant information" ground. Mistake might be disregarded but the other statutory grounds but were applicable. [66] Overall, Mr Hancock submitted, the plaintiff had subverted the integrity of the citizenship system, had advanced incorrect information when the whole of the citizenship application was taken into account and, in particular, had wilfully concealed information which was plainly relevant to the application she made.Discussion and decision[67] The principal basis on which the plaintiff's proceeding rests is that under ss 17 and 19. The Minister's notice of 21 July 2008 satisfied the requirements of s 19(1). Mr Harrison was critical of the notice including all four grounds on which citizenship can be deprived under s 17(2) but the Court proceeds on the basis the Minister must have reached the view which he expressed, namely that all four applied to Ms Hao. [68] The next questions are therefore whether any of the grounds in s 17 are made out and whether the Court should make a "declaration that there are insufficient grounds to justify the making of an order " depriving Ms Hao of New Zealand citizenship. [69] As earlier reviewed, Mr Harrison mounted an argument that certain grant requirements were incapable of being "procured". [70] The Court considers it unnecessary to resolve that question. Ms Hao's New Zealand citizenship was obtained by grant. Section 17(2) speaks of a person being deprived of citizenship if the Minister is satisfied that, in this case, that "grant, or any grant requirement" arose from any of the four disqualifying criteria. It may be true that the word "procured" can only with difficulty be applied to some of the grant requirements listed in s 8 but, here, Ms Hao's citizenship was granted to her under s 8 because the Minister at the time concluded she satisfied the requirements listed in the section, particularly "good character". If that grant of citizenship, including her "good character", is shown to have been procured by one or more of the four disqualifying criteria, then that is sufficient. [71] The Court accordingly next considers whether there are reasons to deprive Ms Hao of New Zealand citizenship because her grant of citizenship was procured by one of the disqualifying criteria. [72] In that regard the first consideration is the terms of the citizenship application itself. In construing that application, in the Court's view, the whole of the form requires to be taken into account. Thus, both the explanatory notes, the questions and the answers to the questions are relevant. As an example, under the section"residence" not only were Ms Hao's answers to the question concerning the date on which her permanent residence was granted in the investment category relevant so, too, are the explanatory notes setting out how an applicant might qualify. [73] The "residence" section contains the question "Please list all passports/travel documents you hold (including expired documents)". Ms Hao completed that section by including her two Chinese passports and their numbers. There is no mention of the Australian passport. It is correct, as Mr Harrison submitted, that the document is phrased in the present tense and, on 6 May 2004, Ms Hao did not physically "hold" any other passports because the Australian passport had been confiscated on 16 July 2000, but that is of limited assistance to Ms Hao in these proceedings because:• She must have been aware that a grant of citizenship is regarded as a serious matter by all nations.• She must also have been aware that the Minister would be relying on the answers she gave and should therefore have been aware of the need for her to be correct and to take more than a strictly literal approach to questions in a form designed to gain her the privileged status of citizenship.• She was signing a statutory declaration under the Oaths and Declarations Act 1957 stating that "I believe the facts in this application are correct", alongside which is the notation:Warning: This form is a statutory declaration. Do not give any false information or conceal any facts. This is an offence and you may lose your New Zealand citizenship.[74] Ms Hao completed the section of the form entitled "Homes" by including an Australian address where she said she had lived from 1999 to 2000. She must therefore be taken to have had matters concerning her Australian residence in mind when she completed the form. [75] In the section headed "Character" the explanatory notes asked the applicant to list "offences against the law" and "all legal action taken against you" plus "investigations in which you were a suspect" and concluded by asking the applicantto "include all cases in New Zealand and overseas". This is the section of the citizenship application form which asks "Have you ever had a Court conviction, traffic infringement or other infringement in New Zealand or overseas?" and "Are you or have you been involved in any legal action or investigation?" both of which Ms Hao answered "No". [76] Whilst, at the date she completed the form, it was correct for Ms Hao to answer the question concerning convictions and infringements as she did and while the inactivity of the Australian authorities may have led her to answer "No" to the question as to whether she had ever been involved in an "investigation", it must nonetheless be the case that, given the explanatory notes and the circumstances of the issue and confiscation of the Australian passport, she could not, in a statutory declaration adjacent to which were the warnings already quoted, correctly answer "No" to the question as to whether she had been involved in "any legal action". (In any event, while Ms Hao may have been unaware of it, her immediate apprehension on endeavouring to enter Australia on 9 March 2005, even with a legitimate New Zealand passport, shows the Australian authorities had not been inactive in her absence from that country). [77] Similarly, in the section of the form headed "Disclosure" it could not be correct for Ms Hao in a statutory declaration and having regard to her history to answer "No" to the question "Is there anything else we should know that may affect your application" particularly when, immediately above the applicant's signature, the form contained a section saying "Please read this section carefully" and said "I will send written advice to the Department of Internal Affairs if there is any change in my circumstances which affects the answers I have given in this application". This aspect of the application, however, warrants rather more detailed consideration. [78] Citizenship and nationality are, as Ms Hao acknowledges and, as mentioned, everybody understands are serious matters. For a national of one country to apply for the grant of citizenship of another country is similarly a serious matter. In making such applications, applicants must be taken to be aware, first, that the country to which they are applying for citizenship relies on the correctness of the information given to safeguard the integrity of the citizenship system and, secondly,that the country to which they are applying is entitled to information beyond the strictly literal in order to protect that system. They must also know that it is, in most cases, possible only with considerable difficulty for the country to which they are applying to check the correctness of the information provided. Therefore, they should be aware that, to acquire the privilege of new citizenship, they should approach the giving of information in a reasonably liberal fashion and should reply with some expansiveness to questions such as "Is there anything else we should know that may affect your application?", leaving it to the country to which the application is being made to decide whether the information provided does so affect their application. [79] It follows that when a national of country A is applying for citizenship of country B a prior grant to that applicant by country C of a right to remain in that country is a relevant consideration and should be disclosed. Ms Hao did not do that. [80] It may be necessary to bear in mind the difference between a national of country A applying for citizenship of country B and a national of country A holding a passport issued by country A applying for citizenship of country B and intending to apply for a passport of country B. Citizenship applications are not necessarily followed by the issue of a passport. Such are only required if the applicant intends to travel internationally. But that is not infrequently the case. Indeed, the attaining of a passport issued by country B may not infrequently be one of the reasons for which an application is made for the grant of citizenship by country B. [81] In this case, although the form of application for New Zealand citizenship says nothing about whether an application for a New Zealand passport would follow a successful application for citizenship, it is clear Ms Hao applied for and was granted a New Zealand passport soon after the grant of citizenship. She used it to try to gain entry to Australia on 9 March 2005, only a few months later. She had a right to such a passport once she became a New Zealand citizen (Passports Act 1992 ss 3 and 4). [82] Australia also treats passport matters seriously. Passports for that country can only be issued to the restricted classes of persons described, at the relevant time,in s 7 of the Passports Act 1938 (C'th). One of those classes, as might be expected, is "Australian citizens" under the Australian Citizenship Act 1948-1973 (C'th). That Act also entitled the relevant Minister to declare that certain classes of migrant under the Migration Act 1958 (C'th) be granted certificates of Australian citizenship. It appears from the AATA decision concerning Ms Hao that she was granted various forms of visa to entitle her to remain in Australia under the Migration Act 1958 (C'th) and was thus entitled to an Australian passport: the AATA decision was as to whether there were grounds to deprive her of status under the Migration Act which, when granted, would appear automatically to have deprived her of any entitlement to an Australian passport. [83] It must therefore follow that when Ms Hao, a Chinese national holding a passport (or passports) issued by China, applied on 6 May 2004 to New Zealand for citizenship and intended to follow that by applying for the issue of a New Zealand passport, she is highly likely to have had in mind that, between her obtaining her Chinese passport(s) and applying for New Zealand citizenship she had, on 13 April 2000, both applied for and been granted migrant Australian status sufficient to entitle her to an Australian passport and had been granted such a passport. Further, of importance, she knew she was granted an Australian passport in a name other than her own and with a birth date other than her own, but bearing her photograph. Then, when she tried to use that passport, it was, on 16 July 2000, confiscated after the grant of New Zealand citizenship. She later pleaded guilty to offences arising out of that and was jailed. [84] Quite irrespective of whether Ms Hao is correct in saying she played no part in the obtaining of what was a genuine Australian passport bearing her photograph but in an incorrect name and including an incorrect date of birth, Ms Hao admits she was aware of the situation concerning the falsity of her Australian passport. She said:" at about the end of June 2000 I received, thanks to the efforts of Ms Liu, a genuine Australian passport – genuine, in the sense that the passport itself was not forged. The passport was in the name of Pamela Hao and had an incorrect date of birth so far as my birth date was concerned. I raised this issue with Ms Liu. She was insistent that the mistake as to the date of birth did not matter and that it was appropriate that I have an English first name on the passport which I could use in Australia."[85] Whatever dissembling excuses Ms Liu may have made, and whether Ms Hao was involved in the later Australian passport application or whether she was involved in the fraud or not, the fact remains that well before she applied for New Zealand citizenship Ms Hao had been granted migrant status entitling her to an Australian passport and had obtained one - in an incorrect name and bearing an incorrect birth date – had endeavoured to use it as if it were genuine, and had the passport confiscated. [86] Because there was no opportunity for cross-examination, Ms Hao's statement that she was unaware of the fraudulent activities of her immigration agent was unchallenged. Notwithstanding that, it must nonetheless be the case that the situation just described was incontrovertibly within her knowledge. Further, it is notable that in her affidavit sworn in support of this application, she never directly dealt with her state of knowledge concerning the Australian passport and its confiscation at the time of her New Zealand citizenship application. She merely said that "I first became aware of the incorrect name and date of birth when I received my Australian passport from Ms Liu" but she must have known she used it as a genuine passport for her trip to Taiwan and that it was confiscated on her return. She may be correct when she said: "I simply had no idea that any false statements had been made in support of the Australian passport applications which I paid Ms Liu to handle" up until the time she received the passport, but cannot have been unaware of it thereafter, particularly after it had been confiscated and she had effectively received nothing for the large sum of money she had paid. She similarly cannot have been unaware of those facts when she was applying for New Zealand citizenship and intended a successful grant to be followed by an application for a New Zealand passport. [87] On that basis the only conclusion realistically open is that the grant to Ms Hao of New Zealand citizenship, made in reliance on all the details of her citizenship application, was, at the very least, a grant procured by "wilful concealment of relevant information". [88] To ground that conclusion in terms of the Citizenship Act 1977, to be eligible for a grant of New Zealand citizenship Ms Hao had to demonstrate that, amongst theother requirements of s 8, she was of "good character". The Minister was obviously satisfied on that score in light of the information she provided. He granted her citizenship. [89] The first step in depriving Ms Hao of that citizenship was for the Minister to give her the notice for which s 19(1) provides that he intended to make an order of deprival on the grounds set out in his notice. The Minister did that in this case and, although his enumeration of all the statutory grounds potentially available under s 17(2) may be open to criticism as indiscriminate - as Mr Harrison criticised it - this Court considers it is obliged to approach the adequacy of the Minister's notice in the terms in which it is couched. [90] Section 17(2) is perhaps unhelpfully phrased in its repetition of the second and third "or" but its meaning is clear enough. What is important for present purposes is that the sub-section clearly creates four alternative grounds for deprival, any one or more of which can be sufficient in the case. Only the fourth ground, mistake, is limited by the terms of 17(3). [91] In Ms Hao's case one of the "grant requirements" was that she demonstrated she was of "good character" and the combination of ss 8 and 17 indicate that if fraud, false representation, wilful concealment of relevant information or mistake was employed in the consideration of whether a citizenship applicant is of "good character" that may impact, on later discovery, on assessment of that factor. [92] In Ms Hao's case the Minister's 21 July 2008 notice advised her that had the Department or he been aware of what he described as the fraud, false representation, wilful concealment of relevant information or mistake said to have been employed by her when putting forward the information on which she sought to satisfy the Minister that she fulfilled the requirements of s 8, she "would not have been considered to have satisfied the good character requirement". That statement should be accepted at face value and as indicating that Ms Hao's demonstration of her "good character" was, in the Minister's view, "procured" by one or more of the stated grounds for deprival.[93] In assessing the correctness of that approach, as has already been demonstrated, the Court's view is that the circumstances of Ms Hao's citizenship application include the fact that she, now, admits that she had earlier obtained Australian migrant status which entitled her to an Australian passport and that she had also obtained and utilised an Australian passport bearing her correct photograph but in a name other than hers and with a false birth date and that it had been confiscated as false. When an application for New Zealand citizenship was to be followed by an application for passport in New Zealand, that history of matters in Australia must have been known to Ms Hao to be relevant to the consideration of her citizenship and passport applications in this country. They are simply so dramatic she could not have forgotten them. To not disclose that history was therefore "wilful", it amounted to "concealment", and the information which should have been disclosed was undoubtedly "relevant information". [94] The Minister was therefore entitled to issue his 21 July 2008 notice that Ms Hao's grant of New Zealand citizenship was "procured" by "wilful concealment of relevant information" which, if known at the time, would have impacted on her citizenship application so far as it related to "good character". [95] In light of that conclusion, consideration of the correctness of the Minister's notice as far as it relates to the other three grounds for deprival is superfluous, but it may be of assistance for the Court to briefly indicate its views. [96] As far as fraud is concerned, even viewing the matter from Ms Hao's viewpoint, for much the same reasons as led to the Court's conclusion on the "wilful concealment of relevant information" ground, Ms Hao's citizenship application must be held to have been underpinned by fraud. An inference is certainly available that the level of ignorance she asserts in her affidavit does not accord with the logic of her position: her use of an Australian passport containing the wrong name and birth date – though the correct photograph – and having it detected and confiscated by the Australian authorities. Those were have been held to have been clearly matters she should have disclosed when applying for New Zealand citizenship. Her failure so to do can properly be characterised as "fraud".[97] The contrary conclusion, however, is the case so far as the "false representation" ground is concerned. That clearly connotes some positive falsity being propounded by the citizenship applicant. When Ms Hao's answers to the questions in the citizenship application form are seen in combination with explanatory notes, she might be said to have been economical with the truth and to have been less than forthright, but it would be difficult to conclude her silence amounted to a "false representation". She put forward no positive false information. [98] As far as "mistake" is concerned, it is difficult, factually, to conclude that the way Ms Hao approached her citizenship application was occasioned by that factor. She knew the details of the Australian experience. She clearly had it in her mind – and dismissed it – when completing the citizenship approach form. Her omissions were therefore not caused by mistake given that she must have known it was relevant. [99] However, in addition, s 17(3) debars the Minister from depriving a New Zealand citizen of citizenship on the ground of mistake if so acting would leave the person stateless. [100] In the circumstances of this case, were the Minister to act on the grounds of "mistake" it would appear that Ms Hao might possibly be left stateless, but only for a temporary period until the Chinese authorities considered any application for her resumption of Chinese citizenship. [101] Those views also apply, though with greater difficulty, to the "anything else we should know" question. It is certainly arguable Ms Hao should have disclosed her Australian citizenship, passport and confiscation experience in response to that question but there is weight in Mr Harrison's submission that, the question being so open-ended and requiring an applicant to guess what factors might affect the Department's consideration of the application, it might only expect open-ended or uninformative answers in response.[102] The final stage of Ms Hao's case is for this Court to consider whether the evidence overall has shown that a declaration should be made that there are insufficient grounds for depriving her of New Zealand citizenship. [103] As the authorities demonstrate, that question requires to be addressed on all the admissible evidence in the case placed before the Court. [104] Ms Hao put in evidence a considerable body of supporting evidence in the form of affidavits, testimonials, evidence of worthwhile work and study she has undertaken in the New Zealand community and the like. Absent the history of her gaining Australian migrant status, obtaining an Australian passport containing false particulars and its confiscation, this material might have amounted to a fairly impressive factor in the balancing exercise required. It was largely a repeat of the material previously put forward on her behalf and, on that occasion, it plainly weighed with the Department and the Minister. [105] However, when the Australian circumstances relating to her status, passport and its confiscation are taken into account the conclusion must be that it significantly outweighs the laudatory supportive material advanced on her behalf. [106] As earlier mentioned, citizenship and passports are important matters for any country. They are largely dependent on the truthfulness of the applicants. Any lack of candour in such applications strikes at the integrity of any country's citizenship and passport regime. [107] Whilst, therefore, a failure on Ms Hao's part to disclose some minor factor might not have weighed heavily against her, the serious consequence of her failure to disclose the relevant Australian details realistically make no conclusion open other than that she is not entitled to a declaration that there are insufficient grounds to justify depriving her of New Zealand citizenship.Result[108] In the result, as far as the application for judicial review is concerned, the conclusion must be that the evidence overall does not prove that the Minister erred in law in any of the ways asserted in Ms Hao's first amended statement of claim filed at the commencement of the hearing. [109] Her application for judicial review must therefore be dismissed. [110] Ms Hao's alternative cause of action seeks a declaration that there are insufficient grounds to justify depriving her of New Zealand citizenship. [111] For the reasons outlined in this judgment, the Court concludes there is no basis for making such a declaration and Ms Hao's cause of action in that regard is also dismissed. [112] If the defendant seeks costs against the plaintiff and counsel are unable to agree on scale or quantum, memoranda may be filed (maximum five pages), with that from the defendant being due within 28 days of delivery of this judgment and that from the plaintiff within 35 days, and with counsel certifying, if they think it appropriate, that the Court may determine all outstanding issues of costs without further hearing. .................................................................HUGH WILLIAMS J.Solicitors:Marshall Bird Curtis (Carole Curtis), P O Box 105 045 Auckland, for Plaintiff Crown Solicitor, PO Box 2213 Auckland 1140, for defendantCounsel:R E Harrison QC, P O Box 1153 Auckland, for plaintiff.Copy for:Vasantha Kalbagal, Case Officer, High Court Auckland