Rafiq v Secretary for Internal Affairs

[2024] NZHC 2043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-001605

[2024] NZHC 2043

BETWEEN

RAZDAN RAFIQ

Applicant

AND

SECRETARY FOR INTERNAL AFFAIRS and CHIEF EXECUTIVE FOR

DEPARTMENT OF INTERNAL AFFAIRS
First Respondents

MINISTER OF INTERNAL AFFAIRS

Second Respondent

Hearing:	On the papers
Judgment:	25 July 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 25 July 2024 at 12 noon Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington Copy to: Applicant

RAFIQ v SECRETARY FOR INTERNAL AFFAIRS and CHIEF EXECUTIVE FOR DEPARTMENT OF INTERNAL AFFAIRS [2024] NZHC 2043 [25 July 2024]

Introduction

[1]                  Mr Rafiq has requested that this proceeding (CIV-2024-404-001605) be referred to a Judge to determine whether it should be accepted for filing.

[2]                  The Registry has accepted the proceeding for filing and referred it to me under r 5.35A for consideration under r 5.35B of the High Court Rules 2016.

[3]                  Mr Rafiq seeks declarations challenging the conduct of the defendants in declining to grant him citizenship in 2017. He also seeks damages of $2,000,000.

[4]                  Mr Rafiq was the subject of a civil restraint (vexatious litigant) order which expired on 28 February 2022. He was also the subject of a judgment dated 29 June 2022 striking out a proceeding for abuse of process and allowing another proceeding (Rafiq v Secretary for Internal Affairs CIV-2022-404-000355) to be served.1 That proceeding (CIV-2022-404-000355) also sought declarations challenging the defendants’ conduct in declining to grant Mr Rafiq citizenship in 2017 and was determined by Downs J on 8 February 2023.2

Abuse of process

[5]                  If I am satisfied that this proceeding (CIV-2024-404-001605) is plainly an abuse of process, I may order that it be struck out or stayed.3 If an order is made without providing an opportunity for Mr Rafiq to be heard, the order must contain a statement of Mr Rafiq’s right to appeal against the decision.4

[6]I am of the view that these proceedings are an abuse of process.

[7]                  First, the proceeding seeks to relitigate claims that were the subject of proceeding CIV-2022-404-000355.

1      Rafiq v Secretary for Internal Affairs [2022] NZHC 1520.

2      Rafiq v Secretary for Internal Affairs [2023] NZHC 127.

3      High Court Rules 2016, r 5.35B(2).

4      Rule 5.35B(3).

[8]                  This proceeding concerns the same defendants and the same decision declining to grant him citizenship as was the subject of CIV-2022-404-000355. In Adamson v Chief Executive of Oranga Tamariki, the Court struck out proceedings challenging care and protection orders because they were an attempt to relitigate the Family Court proceeding already heard and determined.5 I consider that Mr Rafiq is attempting to relitigate Downs J’s decision which was also concerned with the defendants’ conduct in declining Mr Rafiq’s citizenship application in 2017.

[9]                  Mr Rafiq seeks declarations regarding alleged breaches by the defendants of ss 14 and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA). Downs J has already determined that the alleged breaches are misconceived.6

[10]              Mr Rafiq also seeks an order requiring the Minister of Internal Affairs to reconsider his citizenship application or alternatively an order granting citizenship.

Downs J declined to make either of those orders.7

[11]              The type and quantum of damages Mr Rafiq claims were also declined by Downs J who considered they bordered on “misadventure”.8

[12]              Mr Rafiq is clearly wanting to reopen claims that were the subject of Downs J’s decision.

[13]              Second, the proceeding offends the basic rule of civil justice that claims cannot be undertaken in instalment: Mr Rafiq must bring all his claims on a subject together in the one claim.9 This rule is offended by Mr Rafiq now seeking to argue that the defendants also breached s 18 (freedom of movement) of NZBORA. Such a claim should have been brought as part of CIV-2022-404-000355. I also consider that such claim is misconceived.

5      Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 3044 at [11].

6      Rafiq v Secretary for Internal Affairs, above n 2, at [18] and [19].

7 At [22].

8 At [21].

9      Faloon v The Planning Tribunal at Wellington [2020] NZCA 170 at [2] citing Henderson v Henderson (1843) 67 ER 313 (Ch).

[14]Third, Downs J ordered Mr Rafiq to pay costs and disbursements of

$10,192.33.10 Mr Rafiq therefore has an interest in reopening the proceeding and disputing Downs J’s findings. The appropriate course would have been to appeal.

[15]              While Mr Rafiq claims that he filed this proceeding in November 2022 and it was lost by the Registry, there is no record of this proceeding having been filed at that time. Further, CIV-2022-404-000355 had not been determined by November 2022 so Mr Rafiq should have advanced any changes to his original claim by way of amendment and not by filing a new proceeding. Further, Mr Rafiq has not explained why it has taken over 18 months to refile the proceeding. I am not therefore satisfied that the claim is genuine in circumstances where Mr Rafiq has already challenged the defendants’ conduct in declining to grant him citizenship and this Court has determined that claim.

[16]              In these circumstances, it would be manifestly unfair to the defendants if they are required to respond to the proceeding. I am satisfied that the proceeding is an abuse of process.

Orders

[17]              Pursuant to r 5.35B(2)(a), this proceeding (CIV-2024-404-001605) is struck out.

[18]              Pursuant to r 5.35B(4), a copy of this judgment is to be served on the defendants.

[19]Pursuant to r 5.35B(3), I record Mr Rafiq’s right to appeal against this decision.

Tahana J

10     Rafiq v Secretary for Internal Affairs [2023] NZHC 1188.