Khan v Minister of Internal Affairs

[2017] NZHC 2544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001806

[2017] NZHC 2544

UNDER

the Judicature Amendment Act 1972 and the Citizenship Act 1977

IN THE MATTER

of an application for judicial review of a decision of the Minister of Internal Affairs

BETWEEN

MOHAMMED AFEROZ KHAN
Plaintiff

AND

MINISTER OF INTERNAL AFFAIRS

Defendant

Hearing:	18 October 2017
Counsel:	T Mukusha for Plaintiff N Fong for Defendant
Judgment:	18 October 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 18 October 2017 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Avondale  Law, Auckland.

Crown Law, Wellington.

KHAN v MINISTER OF INTERNAL AFFAIRS [2017] NZHC 2544 [18 October 2017]

The issue

[1]    The Minister  of Internal Affairs  served notice of his intention to  deprive  Mr Khan of citizenship.  Mr  Khan  sought  judicial  review  of  that  decision.  On 18 September 2017, Courtney J dismissed Mr Khan’s application for judicial review.1 The Judge concluded Mr Khan deliberately concealed information relevant to his citizenship application. Mr Khan seeks suppression of his name on the basis publication may affect his employment and have a negative impact on his family. He and his wife each filed an affidavit.

[2]The Minister opposes the application.

Background

[3]    Courtney J’s judgment contains the background, which I do not repeat. It is sufficient to observe Her Honour concluded Mr Khan deliberately concealed information relevant to his application for citizenship: at no time did Mr Khan disclose that, in 1997 in the United States of America, he was convicted and imprisoned for robbery and “shooting at an inhabited dwelling/vehicle”.

[4]    The hearing before Courtney J was in open court. A media representative was present for at least some of it. On 27 June 2017 the New Zealand Herald sought permission to access the Court file. On 3 August 2017 Mr Khan brought this application.

Principle

[5]The law in this area is clear.

[6]    A presumption of disclosure attaches to civil proceedings. The presumption arises by virtue of the principle of open justice and the right to freedom of

1      Khan v Minister of Internal Affairs [2017] NZHC 2250.

expression—the latter as guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.2

[7]    In general, parties to civil litigation are required to accept a risk of embarrassment and injury to reputation by virtue of their involvement in litigation.3 Distress or embarrassment in consequence of a public hearing does not, without more, override the principle of open justice. These propositions have been recently reaffirmed by the Supreme Court in Erceg v Erceg [Publication restrictions].4 As that Court noted, “the party seeking the order must show specific adverse consequences that are sufficient to justify exception to the fundamental rule [of open justice]”.5 The standard is a high one.

[8]    A Court seized of an application for name suppression in this context must strike a balance between open justice considerations and competing considerations arising in the particular case.6 While extraordinary or exceptional circumstances are not required, the threshold is appropriately high.7

Analysis

[9]    On Mr Khan’s behalf, Mr Mukusha accepted potential employment consequences are remote. Mr Khan has a job. Mr Mukusha accepted there is no evidence it is in jeopardy. Mr Khan’s concern is that if he leaves his job, finding another may be difficult. However, there is no evidence Mr Khan intends to leave his job and look for another. More importantly, the potential prejudice arising from publication in this respect is abstract.

2      Jay v Jay [2014] NZCA 445, [2015] NZAR 861 (CA) at [118]; Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 (CA) at [25].

3      Clark v Attorney-General HC Wellington  CIV-2004-485-1902,  29  September  2004,  (2004) 17 PRNZ 161 (HC) at [8] and [13]. On appeal, McKenzie J’s comments were specifically endorsed by the Court of Appeal, Clark v Attorney-General (No 1) CA213/04, 2 December 2004, [2005] NZAR 481 (CA) at [36].

4      Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 (SC).

5 At [13].

6      Jay v Jay, above n 2, at [118]; Y v Attorney-General, above n 2, at [31]–[34].

7      Y v Attorney-General, above n 2, at [30]; McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 (CA) at [1].

[10]   This leaves family matters. Mr Khan and his wife are worried publication of Mr Khan’s name may complicate their relationship with Mr Khan’s stepdaughter and members of the extended family. In brief, Mr Khan has not been welcomed into his wife’s family, who have reservations about him. Matters familial are “delicate”. There is also concern revelation of Mr Khan’s criminal record in the United States of America may reflect poorly on him and on his wife, both within and beyond the family.

[11]   These concerns fall appreciably short of the (high) threshold for suppression. The concerns are general in nature. And speculative. Moreover, the concerns arise only because Mr Khan did not inform his wife’s family about his American experience. In a material sense, Mr Khan seeks to be inoculated from the natural and ordinary consequences of his own decision to say nothing about his past to those closest to him. Equally, any injury to reputation is also a natural and ordinary consequence of Mr Khan’s decision to conceal his past from the Minister. And again, the cited concerns are both general and speculative.

[12]   At the hearing, Mr Mukusha responsibly questioned whether an immigration consultant referred to by Courtney J in the judgment should enjoy name suppression on the basis the consultant had never been heard. However, as Mr Fong observed for the Minister, the judgment makes no adverse finding in connection with the consultant, so no natural justice point arises.

[13]Mr Khan’s application for name suppression is dismissed.

……………………………..

Downs J