Joseph v Minister of Internal Affairs
[2014] NZHC 415
•10 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-7130 [2014] NZHC 415
UNDER THE Judicature Amendment Act 1972
BETWEEN JOHN JACOB ABRAHIM JOSEPH Plaintiff
ANDTHE MINISTER OF INTERNAL AFFAIRS
Defendant
Hearing: 30 October 2013
Counsel: J A R Cox for Plaintiff
K G Stephen for Defendant
Judgment: 10 March 2014
JUDGMENT OF KATZ J
This judgment was delivered by me on 10 March 2014 at 3:00pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Blomkamp Cox Solicitors, Auckland
Crown Law, Wellington
JOSEPH v THE MINISTER OF INTERNAL AFFAIRS [2014] NZHC 415 [10 March 2014]
Introduction
[1] Mr John Jacob Abrahim Joseph (also known as Salam Mansoor Abdelabbus Al-Bawi) procured a grant of New Zealand citizenship by fraud. As a result, the Minister of Internal Affairs, the Hon Amy Adams (“Minister”), deprived Mr Joseph of his citizenship on 5 March 2012. Mr Joseph was overseas at the time. He now wishes to return to New Zealand, but is unable to do so as he does not have a residence visa and his New Zealand passport has been cancelled.
[2] If Mr Joseph had been in New Zealand when he was deprived of his citizenship, he would have been deemed to hold a resident visa pursuant to s 75 of the Immigration Act 2009. If steps were then taken to deport him he would have had an opportunity to oppose his deportation on humanitarian grounds.1 However, because Mr Joseph was overseas when he was deprived of his citizenship, he has “lost” that opportunity.
[3] Against this background, Mr Joseph seeks judicial review of the decision of the Minister to deprive him of his New Zealand citizenship. He claims, in essence, that even though the statutory grounds for deprivation of citizenship set out in s 17 of the Citizenship Act 1977 were met,2 that does not automatically entitle the Minister to deprive him of citizenship. Rather, in making a final decision on the issue, the Minister is required to take into account other matters, not specifically set out in the
Citizenship Act, that may be relevant to the Minister’s decision. In particular, Mr Joseph submitted that the Minister should have taken into account his physical and mental health issues, the fact that he has a New Zealand born son with a former partner, and that deprivation of his New Zealand citizenship would render him stateless.
[4] Mr Joseph seeks orders from the Court that would have the effect of reinstating his New Zealand citizenship.
1 Pursuant to ss 158(2)(b) and 158(3)(a) of the Immigration Act 2009.
2 The High Court has already found that Mr Joseph procured his citizenship by fraud: Joseph v
Minister of Internal Affairs [2012] NZAR 179 (HC).
Factual background
[5] Mr Joseph was born in Iraq on 21 October 1975. He is of Kurdish origin. His name at birth was Salam Mansoor Abdelabbus Al-Bawi.
[6] In 1995 he made his way to Denmark, where he made a successful claim for refugee status under his original Al-Bawi name, on the grounds of persecution in Iraq. He was later granted residence in Denmark. On 28 July 1998, Mr Joseph was convicted in Denmark of the offence of loss of liberty with duress, which appears to be broadly equivalent to the crime of kidnapping under the Crimes Act 1961.3
Mr Joseph was sentenced to four months’ imprisonment.
[7] Somewhat surprisingly, Mr Joseph then returned to Iraq, where he acquired his John Jacob Abrahim Joseph identity, and a new birth date. He then made his way to New Zealand, entering this country in April 2000. Shortly after his arrival he revealed to immigration authorities that he was travelling on a false passport. He did not disclose, however, that John Jacob Abrahim Joseph was not his original name, or that his true date of birth was 21 October 1975. Nor did he disclose that he had already been granted refugee status and residency in Denmark, under his birth name. In addition, he did not advise immigration officials of his criminal conviction in Denmark.
[8] Mr Joseph was granted refugee status in New Zealand on 21 June 2001, based on the false and/or incomplete information he provided. He was subsequently granted residency and then, ultimately, New Zealand citizenship. He took the oath of allegiance at a ceremony on 8 September 2003. He then obtained a New Zealand passport in the name John Jacob Abrahim Joseph.
[9] New Zealand authorities subsequently learned, however, of Mr Joseph’s original name and true birth date. They also discovered that he had failed to disclose details of the criminal offence he had committed in Denmark in 1988. As a result, in February 2006, Mr Joseph was arrested and charged with various immigration
related offences.
3 Crimes Act 1961, s 209.
[10] On 7 November 2007 Mr Joseph pleaded guilty to four offences:
(a) making a false statutory declaration (namely, that he had never been charged with or found guilty of any offences in any country) contrary to s 111 of the Crimes Act 1961;
(b)using an application for residence with intent to defraud, contrary to s 229A of the Crimes Act 1961;
(c) knowingly submitting a false citizenship application, contrary to s 27 of the Citizenship Act 1977; and
(d)making a written statement known to be false or misleading in a material particular, for the purpose of procuring a New Zealand passport, contrary to s 32 of the Passports Act 1992.
[11] Mr Joseph was sentenced to six months’ home detention for this offending on
18 March 2008.4
[12] Subsequently, in 2009, Mr Joseph’s status as a refugee was cancelled, on the grounds that he had failed to disclose a material fact when he applied for refugee status. Mr Joseph unsuccessfully sought judicial review of the decision of the Refugee Status Appeals Authority to cancel his refugee status.
[13] Mr Joseph also sought to vacate his guilty pleas to the four immigration related offences and have his convictions for those offences overturned on appeal.5
The Court of Appeal was not persuaded, however, that any miscarriage of justice had occurred. It found that Mr Joseph’s evidence was “often contradictory and at times completely untrue”. The Court concluded that:6
Mr Al-Bawi knew full well that his Joseph persona was entirely fictitious, obtained by corrupt means from Iraqi officials. He knew when he made the various applications and declarations that what he was telling New Zealand officials was untrue on key points. Had he gone to trial, he would have had
4 R v Al-Bawi DC Auckland CRI-2006-004-013465, 18 March 2008.
5 Al-Bawi v R [2010] NZCA 330.
to give evidence (given the nature of the proposed defence). We have seen him under cross-examination – a much gentler and contracted cross- examination than he probably would have faced at trial. No reasonable jury is likely to have accepted the argument that he honestly believed he was justified in his actions by reason of fears for his family back in Iraq.
[14] Mr Joseph’s appeal was accordingly dismissed. Following the dismissal of his appeal, officials recommended to the Minister that an order be made under s 17 of the Citizenship Act depriving Mr Joseph of his New Zealand citizenship, on the ground that it was procured by fraud. Accordingly, on 17 May 2011, the Minister served a notice on Mr Joseph pursuant to s 19(1) of the Citizenship Act. That notice advised Mr Joseph that the Minister intended to deprive him of his New Zealand citizenship, and that he had the right to apply to the High Court for a review of the sufficiency of the grounds that the Minister intended to rely upon.
[15] Mr Joseph exercised that right, seeking a declaration in this Court that there were insufficient grounds to justify the making of an order depriving him of his citizenship under s 17. That application was heard by Lang J on 3 February 2012.
[16] Lang J’s judgment, declining Mr Joseph’s application, was delivered on
24 February 2012.7 His Honour concluded that Mr Joseph had made a deliberate decision to withhold information about his offending in Denmark and that, as a result, he deliberately concealed relevant information. He further concluded that a deliberate failure to divulge such important information amounted to dishonesty. Mr Joseph knew the importance of the information that the form requested. The details that he failed to provide effectively meant that the New Zealand authorities had no means of checking whether he was a person of good character. His Honour
observed that:8
The manner in which Mr Joseph procured his citizenship counts significantly against him, as does the conduct that led to his convictions in both New Zealand and Denmark. I take the view that those factors provide ample grounds to justify the Minister making an order under s 17 of the Act depriving Mr Joseph of his citizenship.
7 Joseph v Minister of Internal Affairs [2012] NZAR 179 (HC).
[17] During the hearing before Lang J, Mr Joseph raised various humanitarian issues, including in particular that he had a New Zealand born son with a former partner and that if he was deprived of New Zealand citizenship he would be rendered stateless. Lang J commented on those concerns as follows:
[65] I understand and appreciate Mr Joseph’s concerns. They are real, and they are understandably very important to him. The Minister’s decision regarding Mr Joseph’s citizenship will not, however, lead automatically and/or inevitably to Mr Joseph’s deportation. Any decision to deport Mr Joseph would be made by the immigration authorities, who are bound to apply the provisions of the Immigration Act 2009.
[66] Mr Joseph would have the right to appeal to the Immigration and
Protection Tribunal on humanitarian grounds against any deportation order.9
If that was unsuccessful, he could raise the likely effect of deportation on his son with any immigration officer. The immigration officer would then be
obliged to consider whether to consider cancelling the deportation order in light of New Zealand’s international obligations.10 I consider those to be the appropriate points at which Mr Joseph’s concerns regarding loss of contact with his son should be addressed. It would be premature for them to assume relevance at this stage.
[18] After the hearing before Lang J on 3 February 2012, Mr Joseph departed on an overseas trip to Dubai and Germany. He was overseas when Lang J’s judgment was delivered on 24 February 2012.
[19] Following receipt of Lang J’s judgment, the Minister decided, based on advice from officials, to proceed with deprivation of Mr Joseph’s citizenship. The Minister and her officials were aware that Mr Joseph was overseas at the time. Officials understood that Mr Joseph would be returning to New Zealand on a flight landing at Auckland Airport at 1:45 pm on 6 March 2012. It was anticipated that Mr Joseph would have difficulties returning to New Zealand if his passport was cancelled while he was overseas. Efforts were therefore made to time the deprivation of Mr Joseph’s citizenship and associated recall and cancellation of his passport to avoid such difficulties. In particular, the intention was to serve him with the deprivation order at the airport on his return and, at the same time, recall his
passport.11
9 Immigration Act 2009, s 206.
10 Immigration Act 2009, s 177(2).
11 Pursuant to s 8(1)(e) of the Passports Act 1992.
[20] The Minister signed the order depriving Mr Joseph of his New Zealand citizenship on 5 March 201212 to enable this sequence of events to occur. Unbeknownst to officials, Mr Joseph had changed his travel plans. He did not return to New Zealand as expected on 6 March 2012. When it became apparent that he was not on the expected flight, the notice recalling Mr Joseph’s passport was served on his solicitors instead. Mr Joseph endeavoured to return to New Zealand a week or so
later. He was unable to do so, however, as his passport had, by then, been cancelled. Mr Joseph was personally served with the deprivation order in Berlin on
4 June 2012, at which time he returned his passport to New Zealand officials.
[21] If Mr Joseph had been in New Zealand when he was deprived of his New Zealand citizenship he would have been deemed to hold a resident visa pursuant to s 75 of the Immigration Act. However, as a consequence of Mr Joseph being deprived of his New Zealand citizenship when he was not “a person in New Zealand”, he is not deemed by s 75(2) to hold a resident visa. He is therefore no longer able to re-enter New Zealand as of right. Mr Joseph has been unable to persuade New Zealand’s immigration officials to grant him an entry visa, and he accordingly remains in Germany.
[22] It is clear from the evidence that the Minister did not have in mind s 75 of the Immigration Act when she made her decision to deprive Mr Joseph of New Zealand citizenship. Similarly, neither Mr Joseph nor his advisers appear to have turned their minds to the considerable risk that Mr Joseph was taking in leaving New Zealand when a deprivation order was pending.
Was the Minister required to take into account matters other than those set out in s 17 of the Citizenship Act, when ordering deprivation of Mr Joseph’s citizenship?
[23] Against this background, the key issue in this case is whether the Minister was required to take into account, when she decided to deprive Mr Joseph of his
New Zealand citizenship, matters other than those expressly set out in the
12 Pursuant to s 17 of the Citizenship Act. A person in respect of whom such an order is made ceases to be a New Zealand citizen as from the date of the order – s 18.
Citizenship Act itself (namely that Mr Joseph’s citizenship had been procured by
fraud).
[24] New Zealand citizenship law is entirely statute based. It is contained in the Citizenship Act and subordinate legislation made under that Act. Determining what factors the Minister was required to take into account must therefore be considered against that background.
The statutory framework
[25] The Citizenship Act sets out how citizenship is acquired and how it can be lost (either by being denounced or through a formal removal process). New Zealand citizenship is highly prized internationally. Every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time. No New Zealand citizen is liable to deportation from New Zealand in any
circumstances.13
[26] The grant of New Zealand citizenship to a person who was not born with that status is a privilege, not a right. The Citizenship Act confers the right to grant citizenship on the Minister of Internal Affairs. Similarly, any decision to deprive a person of their citizenship (if acquired by grant) is for the Minister of Internal Affairs, not the Minister of Immigration.
[27] The statutory process for deprivation of citizenship is set out in ss 17 and 19 the Citizenship Act. Those sections relevantly provide as follows:
17 Deprivation of New Zealand citizenship in case of fraud, etc
(1) This section applies to a New Zealand citizen who has acquired that citizenship—
...
(c) by grant under this Act or the Citizenship (Western Samoa) Act
1982.
(2) Subject to section 19, 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
13 Immigration Act 2009, s 13.
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.
19 Court review of grounds for depriving person of citizenship
(1) Before making an order under section 16 or section 17 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) 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 depriving the applicant of New Zealand citizenship; and the court may make or refuse to make such a declaration accordingly.
(3) Notwithstanding any of the foregoing provisions of this section, in any case where the whereabouts of the person concerned are unknown or for any other reason service on him of a notice under this section is not practicable, the Minister may apply to the court for the dispensing of the requirement to serve notice; and, in such a case, if the court dispenses with that requirement, it shall proceed to consider the merits of the case, in accordance with the provisions of this section, as if the person concerned had applied to the court for a declaration of the kind referred to in subsection (2).
(4) Where the court makes such a declaration, the Minister shall not thereafter, without fresh cause, make an order under section 16 or section 17 depriving the applicant of New Zealand citizenship.
...
(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.
[28] Accordingly, if a person has acquired citizenship by grant, the Minister may deprive that person of their citizenship if satisfied that “the registration, naturalisation, grant, or any other grant requirement was procured by fraud, false representation, or wilful concealment of relevant information, or by mistake”.
[29] Before making a deprivation order, the Minister must give the person to be deprived notice of the Minister’s intention to make a deprivation order. That notice must cite the relevant provisions of the Citizenship Act, specify the grounds the Minister relies on, and advise the person of their right to apply to the High Court for a declaration that there are insufficient grounds to justify the making of the order. Upon being served with the notice of intention, the recipient may apply to this Court for a declaration that there are insufficient grounds to justify the making of a deprivation order. This Court has wide powers in considering such an application. The Court’s decision is, however, final. There is no right of appeal to the Court of Appeal.
[30] If the Minister is satisfied that the statutory grounds in s 17 apply, and any application to the High Court for review of the sufficiency of those grounds has been unsuccessful, then the Minister may deprive a person of their New Zealand citizenship. The Minister may not, however, deprive on the ground of mistake (as opposed to fraud) if that would leave the person stateless.
Submissions
[31] Mr Joseph submitted, in essence, that the use of the word “may” in s 17 indicates that the Minister retains a residual discretion not to deprive a person of citizenship, even if the statutory criteria in s 17 are satisfied. Accordingly, even if this Court has determined under s 19 that there are sufficient grounds to make an order under s 17, deprivation will not automatically follow. When it comes to
actually making a decision as to whether to deprive a person of citizenship, the Minister must not only consider the statutory grounds (that the grant of citizenship was procured by mistake or fraud) but must also consider whether it is appropriate in all of the circumstances to issue a deprivation order.
[32] Mr Joseph argued that Lang J’s judgment did not “render the subsequent executive decisions and actions of the defendant immune from judicial review”. The Minister was required to consider a number of matters additional to the express statutory criteria, including Mr Joseph’s health, the fact that he has a New Zealand born child, and that deprivation of his New Zealand citizenship would render him stateless. This was particularly so given that Mr Joseph was overseas at the time and would not therefore receive the benefit of a deemed resident visa under s 75 of the Immigration Act. The Minister was not simply entitled to rely on Lang J’s judgment that there were sufficient grounds to deprive Mr Joseph of his citizenship. In effect, Lang J’s judgment established that the Minister could deprive Mr Joseph of his citizenship, in terms of the statutory criteria. However, it was for the Minister to then determine whether she should do so.
[33] Mr Stephen, on behalf of the Minister, argued to the contrary. In particular, if this Court considers that there are sufficient grounds to justify the making of a deprivation order in the context of a s 19 review, the Minister is then entitled to serve notice of deprivation. The Minister was not required, at that stage, to consider a range of other factors, not set out in the statute, before making a final decision. She was entitled to rely on the High Court’s ruling in issuing the order to deprive.
[34] Mr Stephen submitted that this Court is now functus officio in relation to the question of whether Mr Joseph should have been deprived of citizenship.14 The issue of a notice remains a procedural step for the Minister to take, but it will not generally be amenable to the Court’s review, other than in exceptional circumstances (for example if there is an error of law on the face of the record). To hold otherwise would mean the final decision of this Court that there are sufficient grounds
justifying a person no longer continuing to be entitled to the privilege of
New Zealand citizenship is being re-litigated.
14 R v Nakhla (No. 2) [1974] 1 NZLR 453 (CA).
Discussion
[35] As I have already noted, citizenship law is entirely statute based. In my view the two stage process advanced by Mr Joseph is not consistent with the overall scheme of the Citizenship Act. The statutory scheme envisages the Minister forming a view as to whether the statutory ground(s) for deprivation of citizenship are met (that citizenship was procured by fraud or mistake). The Act then builds in a layer of protection for a person facing deprivation of their citizenship. They must be given notice of the Minister’s intention and they have the right to apply to the High Court under s 19 for a review of the sufficiency of the grounds the Minister relies on.
[36] Section 19 requires the Court to make a determination on whether there “are” sufficient grounds to deprive (s 19(2)). A de novo assessment of the evidence is required at the time the declaration is determined. The Court’s task on a s 19(2) application is not, therefore, to simply review the Minister’s preliminary decision to deprive a person of citizenship, but to undertake an inquiry afresh. The Court is not limited to considering whether the Minister was right or wrong. This position was
recognised in Yang v Minister of Internal Affairs where the Court stated: 15
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 on by the Minister prior to making the decision to issue notice under s 19(1).
[37] The Act envisages, however, that if the statutory grounds are made out, the Minister may proceed to make a deprivation order. She is not required to do so. Indeed there may be cases where she decides, in her absolute discretion, not to make such an order. But once the Court has ruled that there are sufficient grounds under s 17, the Minister is entitled to proceed to make a deprivation order.
[38] On Mr Joseph’s analysis, any decision by a Minister to deprive a person of citizenship would be potentially subject to two High Court challenges, an initial challenge under s 19, based on the statutory grounds, and then a subsequent challenge by way of judicial review when the Minister’s final decision is made. In
my view such a process is contrary to the scheme and intent of the Citizenship Act.
15 Yang v Minister of Internal Affairs [1998] 1 NZLR 309 (HC) at 316. See also Heng v Minister of Internal Affairs HC Auckland M616/95, 24 April 1996 at [6].
If Parliament had intended to impose an obligation on the Minister to take into account factors other than those set out in s 17, then I would expect this to have been made explicit. The statutory process for deprivation of citizenship does not contemplate consideration of humanitarian or other factors as a necessary pre-requisite to deprivation of citizenship.
[39] I therefore accept the Minister’s submission that the decision of Lang J on the s 19 application was final (by dint of s 19(9)) and that the Minister was entitled to rely on that decision in issuing her order to deprive.
[40] I also accept the Minister’s submission that these judicial review proceedings are, at least some extent, a collateral challenge to the original declaration of this Court, as set out in Lang J’s judgment. For example, I note that the statement of claim in these proceedings repeats, at considerable length, submissions that were advanced (unsuccessfully) before Lang J. In particular, paragraphs [22] – [27] all commence with the words “[t]he plaintiff submitted...” before summarising submissions that were advanced at the hearing before Lang J. Paragraphs [28] and [30] also purport to summarise written or oral submissions made in those proceedings. The same approach was taken in Mr Joseph’s submissions.
[41] Ultimately, Mr Joseph seeks orders which would have the effect of reinstating New Zealand citizenship in circumstances where the Minister and the High Court (in prior proceedings) have both concluded that he is not entitled to continue to have that privilege.
[42] For the reasons outlined, I have concluded that there was no obligation on the Minister to consider matters other than those set out in s 17 when making her deprivation order. For completeness, however, I comment further below on two specific issues raised by Mr Joseph.
Unforeseen consequences of making deprivation order while Mr Joseph was overseas
[43] It was common ground that Mr Joseph does not have the benefit of the deeming provision in s 75(2) of the Immigration Act, pursuant to which he would
have been deemed to hold a resident visa if he had been in New Zealand when deprived of his citizenship. Section 75 was introduced into legislation in 2009, however Parliament limited its application to persons “in New Zealand” when they were deprived of citizenship.
[44] The fact that Mr Joseph is not automatically entitled to a resident’s visa, and must now meet normal immigration criteria to obtain one, is the consequence of his own decision to travel overseas while a decision on his High Court challenge under s 19 was pending. Mr Joseph obviously did not appreciate the possible ramifications of his actions. However, Mr Joseph and his advisers (rather than the Minister) were the persons best placed to consider the potential impact of s 75 on Mr Joseph, and to take steps to avoid the risk of losing the benefit of the deeming provision in that section.
[45] The current situation, although unintended, arises because Mr Joseph decided to leave New Zealand before the outcome of his deprivation hearing was known. Unfortunately for Mr Joseph, he is now in a situation where he does not meet immigration policy requirements for re-entry to New Zealand. The New Zealand Immigration Service has therefore declined to issue him with an entry visa. That is an immigration issue. The Citizenship Act processes have been exhausted. The Minister of Internal Affairs is not responsible for the immigration portfolio. If the situation were otherwise it could potentially create perverse incentives for persons who receive a notice under s 19 of the Citizenship Act to leave New Zealand in order to retain their citizenship.
Statelessness
[46] Mr Joseph also submitted that the Minister should have taken into account that deprivation of his New Zealand citizenship would render him stateless.
[47] The Citizenship Act entitles the Minister, in appropriate circumstances, and subject to the oversight of this Court under s 19, to deprive a person of citizenship where that may result in the person becoming stateless. It is only where citizenship is acquired by mistake, in which case there will be no culpability on the part of the
citizen, that deprivation is prohibited.16 Where citizenship has been acquired by fraud the Minister is entitled to issue a deprivation order, even if the effect of that is to render a person stateless.
Conclusion and Summary
[48] Mr Joseph was deprived of his New Zealand citizenship on 5 March 2012, on the grounds that it was procured by fraud. He was overseas at the time. He now wishes to return to New Zealand, but is unable to do so as he does not have a resident visa and his New Zealand passport has been cancelled. Immigration officials will not grant him a visa to enter New Zealand as he does not meet immigration policy criteria.
[49] If Mr Joseph had been in New Zealand when he was deprived of his citizenship, he would have been deemed to hold a resident visa pursuant to s 75 of the Immigration Act 2009. If steps were taken to deport him, he would have had an opportunity to oppose his deportation on humanitarian grounds. Mr Joseph claims that, in such circumstances, the Minister of Internal Affairs was required to take humanitarian and other factors into account when she deprived him of his citizenship. He alleges that the Minister erred in assuming that the only matter she was required to take into account was that set out in the Citizenship Act itself, namely that Mr Joseph’s grant of citizenship had been procured by fraud.
[50] I have rejected Mr Joseph’s claims and concluded that the scheme of the Citizenship Act entitled the Minister to deprive Mr Joseph of his citizenship after the statutory processes set out in the Citizenship Act were followed. These required the Minister to give Mr Joseph advance notice of her intention to deprive him of citizenship, following which he had an opportunity (which he took) to challenge that in this Court. Following a decision by Lang J that sufficient grounds existed under the Citizenship Act for the Minister to order deprivation (because Mr Joseph’s
citizenship had been acquired through fraud) she was entitled to act accordingly.
16 Section 17(2).
[51] The Minister was not required, at the time of her final decision making, to consider any matters other than those set out in the Citizenship Act.
Result
[52] The plaintiff’s claim fails and I decline to grant the declarations and orders sought, which would have the effect of reinstating Mr Joseph’s citizenship.
[53] My preliminary view is that the defendant is entitled to scale costs on a 2B basis. If costs cannot be agreed based on this indication, any memorandum on behalf of the defendant is to be filed by 21 March 2014 and any memorandum in
reply on behalf of the plaintiff is to be filed by 28 March 2014.
Katz J