Khan v Minister of Internal Affairs

[2017] NZHC 2250

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT UNTIL THE FINAL DISPOSITION OF NAME SUPPRESSION APPLICATION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001806 [2017] NZHC 2250

UNDER

Judicature Amendment Act 1972 and s 19,

Citizenship Act 1977

IN THE MATTER

of an application for 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:	19 June 2017
Appearances:	T Mukusha for Plaintiff K G Stephen and L Kean for Defendant
Judgment:	18 September 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 September 2017 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

KHAN v MINISTER OF INTERNAL AFFAIRS [2017] NZHC 2250 [18 September 2017]

Introduction

[1]      Mr Khan  came  to  New  Zealand  in  2004  on  a  visitor’s  permit,  obtained residence in 2008 and finally, in 2013, a grant of citizenship. At none of those stages did he disclose that in 1997 he had been convicted and imprisoned in the United States for robbery and for shooting at an inhabited dwelling/vehicle.

[2]      The Minister of Internal Affairs has served a notice of his intention to deprive Mr Khan of citizenship under s 17(2) of the Citizenship Act 1977.   Mr Khan has applied for judicial review of the Minister’s decision. It is not clear from the pleadings whether he also intended to apply for a declaration under s 19(2) that there are insufficient  grounds  to  make  an  order  for  deprivation,  though  his  counsel’s

submissions included material consistent with such an application.  Out of caution I

approach the proceeding as raising both applications.

[3]      Mr Khan’s position on the s 19(2) application is that, in not disclosing his previous convictions, he was simply following the advice of his immigration adviser and therefore did not act wilfully for the purposes of s 17(2).

[4]      On the judicial review application he asserts that:

(a)       the Minister failed to take into account the circumstances in which

Mr Khan failed to disclose his conviction;

(b)the Minister made an error of law in treating Mr Khan’s failure to disclose the information as wilful for the purposes of s 17(2);

(c)      given Mr Khan’s explanation for not disclosing his conviction and his good record while in New Zealand, the Minister’s decision to issue a notice was unreasonable;

(d)      the Minister failed to exercise his discretion by issuing a notice under s

17(2) without considering Mr Khan’s submissions or investigating the advice given by the immigration adviser.

Statutory framework for deprivation of citizenship

[5]      Under s 8 the Minister may authorise the grant of New Zealand citizenship to a person who meets certain specified requirements.   These requirements include a minimum period of residency1  and that the applicant is of good character.2     The Minister may, however, deprive a person of the grant; s 17(2) provides that:

Subject to s 19, the Minister may, by order, deprive a New Zealand citizen 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.

[6]      Under s 19(2) a person in respect of whom the Minister makes an order under s 17(2) may apply to the court for a declaration that there are insufficient grounds for depriving the applicant of citizenship:

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 s 16 or, as the case may require, s 17 depriving the applicant of New Zealand citizenship; and the court may make or refuse to make such a declaration accordingly.

[7]      The court’s decision on an application under s 19(2) is final.  However, it is open to a person served with a s 17(2) notice to make an application for judicial review either as well or instead of a s 19(2) application and the decision on the judicial review application is, of course, appealable.

Background

[8]      Mr Khan was born in Fiji in 1978.  Later (it is not known precisely when), he moved to the United States. In 1997, he was sentenced to two years’ imprisonment on charges of robbery and shooting at an inhabited dwelling/vehicle.   When he was released from prison deportation proceedings were started but he returned to Fiji

voluntarily.

1      Citizenship Act 1977, s 8(2)(b).

2      Citizenship Act 1977, s 8(2)(c).

[9]      In late 2004 Mr Khan entered New Zealand on a visitor visa. When he applied for the visitor’s permit he answered “No” to the following question:

Have you or any person included in this application been:

•    convicted …

for any offence(s) against the law in any country …

[10]     In  the  same  document  he  signed  a  declaration  acknowledging  that  he understood the questions and contents of the form and that the information he had provided was true and correct.   The form included a statement by an immigration adviser, Alistair Waite, that he had assisted in the completion of the form and that

Mr Khan had agreed that the information was correct before signing the declaration.

[11]     In January 2005 Mr Khan applied to have his criminal record in the United

States expunged.

[12]     On 31 March 2005 Mr Khan lodged an incomplete residence application in which the character section containing a question whether Mr Khan had been convicted or found guilty of any offence against the law in any country was left blank.

[13]     In May 2005, following the granting of Mr Khan’s application to have his criminal record expunged, the relevant court records were sealed.

[14]     In January 2006 a different immigration consultant, Barbara Hoglund, sent a completed character section under cover of a letter advising that the information in question A85 had been corrected.  In the corrected form the answer “No” was given to the question whether Mr Khan had been convicted or found guilty of any offence against the law in any country.

[15]     In his application for citizenship lodged in April 2013 Mr Khan was asked:

Where have you lived in the last five years?

Include places you have lived in New Zealand and overseas.

[16]     Mr Khan did not disclose that he had previously lived in the United States.

[17]     In the same form Mr Khan answered “No” to the following question:

Have you ever been convicted or found guilty of any offence against the law of New Zealand or any other country?

[18]     That question, however, was qualified by the following note:

You do not need to include any information that is covered by the Criminal

Records (Clean Slate) Act 2004. See pg 10 of the guide for more information.

[19]     In  2014  the  Department  of  Internal  Affairs  (DIA)  made  inquiries  into

Mr Khan’s background and details of his US criminal history emerged.   A DIA investigator, Bruce Ross, interviewed Mr Khan and put to him the allegation that he had a US criminal conviction. Mr Khan denied that and denied ever spending time in the US as an adult.

[20]     Mr Ross wrote to Mr Khan the next day advising that the DIA intended to request that the Minister make an order depriving him of New Zealand citizenship. Mr Khan was given the opportunity to respond, which he did, though not in any substantive way. At an early stage he indicated that he was willing to co-operate and asked if he could voluntarily give up his New Zealand citizenship but keep his residency.  In subsequent communications Mr Khan again challenged the source of the information about him, pointing out that records could be expunged in the US.

[21]     Eventually Mr Khan wrote to Mr Ross, apologising for having denied the allegations put to him and claiming that he had been told by Ms Hoglund that he did not have to inform anyone of his past because his records were sealed.

[22]     On 14 June 2016 the DIA prepared a report in which it traversed the history of Mr Khan’s visa and citizenship applications.  It acknowledged the possibility that Mr Khan may have received advice that he was not required to disclose expunged convictions but concluded that:

Although Mr Khan’s later statements and omissions following expungement did not procure Mr Khan citizenship or any requirement of it,  they are nevertheless included for context so that it is clear that the Department is not proposing Mr Khan’s deprivation simply because of two aberrant or uncharacteristic omissions in 2004 and 2005 that may be susceptible to an innocent explanation. On the contrary, it appears Mr Khan has actively sought to conceal his connection to the US and his US convictions in order firstly to obtain entry to New Zealand and later to convert this status to residency then

ultimately into citizenship. … When further questioned in 2016 about his misleading Immigration New Zealand in his 2004 and 2005 applications lodged before the expungement of his convictions, he advised that an immigration adviser had told him to leave his convictions out of his applications because his expungement meant they were no longer relevant. This explanation failed to address the question of why Mr Khan would believe it acceptable, or could have been advised, to leave out convictions in applications lodged before his convictions were expunged and indeed before he had even applied for expungement in the case of the first application.

[23]     The DIA recommended deprivation of citizenship. The Minister subsequently served a notice dated 20 June 2016 of intention to deprive Mr Khan of citizenship. The notice identified the following ground for deprivation:

You were granted citizenship under section 8(1) of the Citizenship Act 1977. This included the requirement that you be entitled to be in New Zealand indefinitely.

The Department of Internal Affairs and I were unaware that, when you applied for an original entry visa in 2004 and then a residence visa in 2005 which would ultimately entitle you to reside in New Zealand indefinitely, you failed to  declare that you  had a criminal  history in the US.   This entitlement subsequently enabled you to become a New Zealand citizenship.

The grounds on which I intend to make this order depriving you of your New Zealand citizenship are that you procured the grant requirement of being entitled to be in New Zealand indefinitely through wilful concealment of relevant information.

Insufficient grounds to justify an order?

[24]     Although citizenship is recognised as a fundamental human need and right3, citizenship acquired by grant is, by its nature, a privilege and one which may be taken away.  This reflects the need for the state to be able to control the process by which it confers grants of citizenship. Randerson J summarised the position in Wang v Minister of Internal Affairs:4

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

3      Yan v Minister of Internal Affairs [1997] 3 NZLR 450 at 456.

4      Wang v Minister of Internal Affairs [1998] 1 NZLR 309 at 316.

that the grant was procured by fraud or any other of the grounds specified 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.

[25]     Mr Khan has not suggested that the information about his criminal convictions and the time spent living in the US are not relevant.  Instead, his argument was that insufficient grounds existed for the deprivation on the stated ground because he did not act wilfully in failing to disclose that information.

[26]     Mr Khan’s position is that, in completing his visitor permit application, his decision not to declare his convictions was made on the advice of the immigration consultant. In relation to the residence application Mr Khan says that he was unaware that Immigration New Zealand had contacted the immigration consultant with a query on why the character section of the residence application had not been completed and was unaware of her response.  In the affidavit filed in support of his application Mr Khan deposed that he only had a high school education and that his failure to fully inform the DIA of the relevant information was the result of his own ignorance of his legal obligations.

[27]     In submitting that Mr Khan had not acted wilfully, Ms Mukusha relied on the dictionary  definition  of  wilful,  “intentional;  deliberate”  and  argued  that,  given

Mr Khan’s level of understanding he cannot be taken to have acted intentionally or deliberately and therefore did not act wilfully.

[28]     Clearly,  wilful  concealment  does  require  deliberate  action.    In  Joseph  v

Minister of Internal Affairs Lang J described it as:5

… a deliberate omission of information that is likely to be relevant to the decision the Minister is required to make … Dishonesty is not, however, an essential element of making a false representation or deliberately withholding relevant information.

[29]     It is perfectly clear from Mr Khan’s own statements and from the documents he did deliberately conceal the relevant information and thereby acted wilfully for the

purposes of s 17(2).  No particular level of education or knowledge of the law was

5      Joseph v Minister of Internal Affairs [2012] NZHC at 49, [2012] NZAR 179 at [41] – [42].

needed to answer the straightforward questions about previous convictions and time spent in the US. There is no suggestion that Mr Khan did not understand the questions. Even assuming that he did receive advice not to disclose the information,6 Mr Khan simply made the choice to follow that advice even though it was obvious that, in doing so, he would be misleading the DIA.

[30]     Nor is the position affected by the fact that, by the time the application for citizenship application was made Mr Khan’s previous convictions had been expunged. The notice under s 17(2) the Minister is not directed towards the application for citizenship.  Information wilfully withheld in the context of an earlier immigration process may entitle the Minister to act under s 17(2) provided the citizenship was ultimately procured through the use of that document.  “Procure” requires only that the wilful concealment be a substantial cause of the grant of citizenship; it does not need to be the immediate or principal cause of the grant being made.7

[31]     The present case has parallels with Rajan v Minister of Internal Affairs.  The ground of deprivation in that case was mistake as to whether the applicant had fulfilled the minimum residency requirement.  That requirement was treated as being satisfied in part by a period of Australian residence.  But the applicant’s Australian residence permit had been obtained on the basis of her husband’s residence permit which (unknown to her) had been obtained by fraud.  The citizenship grant was therefore held to have been procured by the mistaken belief she fulfilled the minimum residency requirements.

[32]     Mr Khan’s application for citizenship similarly depended on proof by him of the residency requirements in s 8(2)(b).  It is beyond dispute that Mr Khan obtained both his visitor permit and residence by concealing relevant information, namely that he had criminal convictions in the United States.  The fact that Mr Khan may have wilfully concealed relevant information in reliance on advice of an immigration adviser does not detract from the fact that, by doing so, his grant of citizenship was procured by fraud. Even if Mr Khan himself was unaware of the misstatements in the

residence application as he claims, residence was still procured through the wilful

6      There must be some doubt over this if only because Mr Khan only refers to advice given by

Ms Hoglund but it is Mr Waite who is named on the visitor’s permit application.

7      Rajan v Minister of Internal Affairs HC Auckland M1040/95, 5 November 1996; Joseph v Minister of Internal Affairs, above n 5.

concealment of relevant information; it is well established that a grant of citizenship procured through the use of fraudulent documents is liable to be withdrawn even where the applicant was unaware of that fact.8

[33]     It follows that Mr Khan was not in lawfully in New Zealand when he made his citizenship application and therefore could not have satisfied the minimum residency requirements at the time he applied for citizenship.  I am not satisfied that insufficient grounds exist for the s 17(2) notice to be served and decline to make a declaration under s 19(2) to that effect.

Judicial review

Failing to take relevant consideration into account weight given to relevant factors

[34]     Ms Mukusha, for Mr Khan, argued that the Minister failed to take into account (1) Mr Khan’s explanation for not disclosing the information; (2) the immigration adviser’s conduct; (3) the fact that Mr Khan had applied for expungement of his convictions in the US when he applied for citizenship; (4) Mr Khan’s limited level of education; and (5) Mr Khan’s behaviour as a good citizen during the time he has been here. She also submitted that the Minister failed to give adequate weight to Mr Khan’s regret at his past actions and his law-abiding life in New Zealand.

[35]     It will be apparent from my earlier discussion that Mr Khan’s modest level of education is not a relevant factor.  I am satisfied that all the other matters were taken into account.  The Minister made his decision on the basis of the DIA’s 14 June 2016 report.  That report fully canvasses Mr Khan’s criminal history, his application for expungement of that history, his response when questioned, including his assertion that his immigration advisor told him not to disclose the information, his regret at past actions and the fact that he had lived in a law-abiding way in New Zealand for ten years and would be seriously disadvantaged if deprived of his citizenship.   The Minister therefore had before him all the relevant information about Mr Khan’s situation and it is to be inferred that he acted in the knowledge of that information.

[36]     The weight given to any of these factors is a matter for the Minister and will not justify impugning a decision unless it can be said to have produced a decision that is unreasonable in the Wednesbury sense, being so unreasonable that no reasonable decision-maker could have made it. That is clearly not the case here.9

Error of law – meaning of “wilful”

[37]     Pleaded as a separate ground, Mr Khan alleged that the Minister failed to apply the law correctly by failing to engage sufficiently with the term “wilful”. This ground is effectively answered by my earlier discussion in the context of the s 19(2) application.  There is no question that Mr Khan’s deliberate withholding of relevant information was wilful for the purposes of s 17(2) and the Minister made no error in this regard.

Failing to inquire into the conduct of the immigration agent

[38]     The final ground of unreasonableness pleaded was the failure of the Minister to have made a “robust inquiry” into the conduct of Mr Khan’s immigration adviser. The Minister was under no obligation to make any such inquiry.  In any event, it is clear from my earlier discussion that even if Mr Khan received advice of the kind he claims the outcome would be the same.  Mr Khan cannot rely on advice given by a third person, even a professional adviser, as justification for deliberately withholding relevant information.

Result

[39]     I am satisfied that:

(a)       there are sufficient grounds for the notice issued under s 17(2) so that the s 19(2) application fails;

(b)none of the grounds raised on the judicial review application disclose error or unreasonableness by the Minister. That application also fails.

[40]     I was not addressed on the issue of costs.  Counsel may address that issue by memoranda filed on behalf of the defendant within 14 days, the plaintiff within 21

days, with any reply by the defendant within 28 days.

P Courtney J