Rafiq v Secretary for Internal Affairs
[2023] NZHC 127
•8 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000355
[2023] NZHC 127
BETWEEN RAZDAN RAFIQ
Applicant
AND
SECRETARY FOR INTERNAL AFFAIRS AND CHIEF EXECUTIVE FOR DEPARTMENT OF INTERNAL AFFAIRS
First Respondent
MINISTER OF INTERNAL AFFAIRS
Second Respondent
Hearing: 1 February 2023 Appearances:
Applicant in person
BM McKenna and ND White for Respondents
Judgment:
8 February 2023
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 8 February 2023 at 12 pm pursuant to r 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 [2023] NZHC 127 [8 February 2023]
The case
[1] Razdan Rafiq was declined citizenship. Mr Rafiq seeks judicial review of that decision and damages under the New Zealand Bill of Rights 1990.1 The Crown acknowledges the decision should be quashed but contests the award of damages. This judgment addresses both.
Background
[2]Mr Rafiq is a Fijian citizen and permanent resident of New Zealand.
[3] In December 2007, Mr Rafiq applied for citizenship. Mr Rafiq withdrew the application in July 2008 because he could not meet the good character requirement.
[4] Between 2009 and 2011, Mr Rafiq sent a series of abusive letters. He was convicted of related criminal harassment and breaches of the Postal Services Act 1998.
[5] In or about 2013, Mr Rafiq became increasingly litigious. On 27 May 2015, the High Court declared Mr Rafiq a vexatious litigant and prevented him from bringing any civil action without permission of the Court.
[6] On 1 August 2013, Mr Rafiq was adjudged bankrupt after not paying a debt following a defamation case.
[7] On 7 November 2016, Mr Rafiq made a second application for New Zealand citizenship, the application underlying this case.
[8] On 24 August 2017, the Minister of Internal Affairs2 declined to grant Mr Rafiq citizenship. Mr Rafiq did nothing about the decision until 29 June 2022 or thereabouts, when he filed this claim. The delay may reflect Mr Rafiq was barred from bringing civil proceedings until 28 February 2022, albeit he could have sought the Court’s permission to file the claim despite the ban.
1 Bill of Rights Act.
2 The Minister.
Mr Rafiq’s case
[9] Mr Rafiq’s claim is difficult to follow.3 Its central contention appears to be the Minister erred in law in declining citizenship.
[10] Mr Rafiq also contends he should have damages of $2,000,000, including exemplary damages of $500,000, because the Minister breached his rights under ss 14 and 27 of the Bill of Rights Act. The former protects the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind (in any form). The latter affirms the right of every person to the observance of the principles of natural justice by any Tribunal or other public authority.
Analysis
[11] The Minister declined to grant citizenship on the basis Mr Rafiq had not demonstrated he was of good character. In this context, character is typically concerned with a person’s morality and reputation. Consequently, in Shandil v Attorney-General,4 this Court has held exclusive focus on criminal convictions would wrongly ignore a wide range of other relevant behaviours marked by law, including “protection orders under the Domestic Violence Act 1995, a conviction for offences under the Fisheries Act 1996, failure to meet child support obligations, or even judgments against an applicant in civil proceedings for damages or debt recovery”.5 The Court said the “Minister has an obligation to ensure that those to whom he [or she] grants citizenship will indeed be good and law abiding citizens”.6
[12] Similar observations appear in the Australian case of Goldie v Minister for Immigration and Multicultural Affairs.7
3 Amended statement of claim dated 1 August 2022. Duffy J described an earlier iteration of the claim as “poorly pleaded”; see Rafiq v Secretary for Internal Affairs [2022] NZHC 1520 at [13].
4 Shandil v Attorney-General HC Auckland M2192/91, 30 April 1997.
5 At 8.
6 At 8 and 9.
7 Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277, (1999) 56 ALD 321.
[13] The reasons for the Minister’s decision are in a (short) letter to Mr Rafiq of 31 August 2017. This reads:
Your application for New Zealand citizenship was recently sent to the Minister of Internal Affairs for his decision. The submission included the information you provided for the Minister’s consideration.
The Minister has decided not to approve your application at this time. This is because he was not satisfied that you meet all of the requirements of the Citizenship Act 1977 (Act).
Under section 8(1) of the Act, the Minister must be satisfied that (amongst other things) you are of good character. The Minister decided that you do not clearly meet this requirement because of the circumstances surrounding your bankruptcy and the recentness of the High Court ruling in relation to your filing of court proceedings against various agencies.
Your application was also considered under section 9(1)(c) of the Act. This provision allows the Minister to grant citizenship to someone who does not meet the requirements of section 8(1) if he is satisfied that you have exceptional circumstances that would make it in the public interest to do so. The Minister is not satisfied that your circumstances are exceptional such that it would be in the public interest to grant you citizenship.
This decision does not prevent you from making another application in the future. I recommend that before you re-apply you check our website or call 0800 22 51 51 regarding your eligibility.
[14] As will be apparent, the Minister declined citizenship because Mr Rafiq did not satisfy the good character requirement, in turn because (a) Mr Rafiq had been declared a vexatious litigant; (b) “the recentness” of that ruling; and (c) “the circumstances surrounding” Mr Rafiq’s bankruptcy. Those circumstances were said to have been identified to the Minister in a report, but the report said little beyond:
(a)Mr Rafiq was adjudged bankrupt 1 April 2013 after not paying a debt of $13,645 following an unsuccessful defamation case.
(b)Mr Rafiq would not be eligible to be discharged from bankruptcy until three years after he submitted a complete statement of affairs to Insolvency New Zealand, which he was yet to provide.
(c)Mr Rafiq had pre-existing debts to Inland Revenue and BNZ Collection House Ltd totalling $146,979.05 (of which $113,763.86 was owing to Inland Revenue).
(d)Mr Rafiq was paying fines to the Ministry of Justice.
[15] On behalf of the Crown, Ms McKenna accepts the Minister erred. Ms McKenna offers this concession because the Minister relied on the bald facts Mr Rafiq had recently been declared a vexatious litigant and adjudged bankrupt (given the report did not greatly illuminate the circumstances in relation to Mr Rafiq’s bankruptcy). Ms McKenna acknowledges this information, taken together, was not adequate to decline citizenship on the ground Mr Rafiq was not of good character. Ms McKenna stresses, however, it was “well open” to the Minister to decline citizenship on the ground of character provided the Minister did so having regard to totality of circumstance, as against the mere facts identified.
[16] I accept the concession. It is responsible. I emphasise the distinction made by Ms McKenna. The Minister was required to consider the circumstances in relation to Mr Rafiq’s recent vexatiousness, those concerning his bankruptcy, and, of course, any other relevant circumstances. The mere facts of (recent) vexatiousness and bankruptcy did not constitute an adequate basis to decline citizenship on the ground Mr Rafiq was not of good character.
[17] Mr Rafiq seeks to impugn the decision on a raft of other grounds. I address each briefly:
(a)Mr Rafiq contends his convictions were irrelevant. This is incorrect for the reason identified in the report to the Minister.
Mr Rafiq’s convictions do not automatically disqualify him from being granted citizenship. The compulsory stand-down periods, prescribed in section 9A of the Citizenship Act, have passed for all his convictions. However, his convictions may be relevant to the overall assessment in your determination of whether he is of good character.
(b)Mr Rafiq contends the Minister did not consider his submission that he is of good character. This is incorrect. The evidence establishes this submission was brought to the Minister’s attention.
(c)Mr Rafiq appears to contend exceptional humanitarian circumstances existed justifying citizenship under s 9(1)(c) of the Citizenship Act 1977.8 Mr Rafiq was invited to make a submission to the Minister on just this point. He did not do so.
(d)Mr Rafiq contends he was entitled to citizenship on the basis of his mother’s citizenship status. This is incorrect. Section 10(1) of the Act provides for citizenship when a person’s mother was a New Zealand citizen otherwise than by descent, and the applicant was born before 1 January 1978. Mr Rafiq was not.
(e)Mr Rafiq also contends the Minister gave no weight to the fact his mother was a New Zealand citizen at the time of his application. Mr Rafiq did not raise the point in his application, and this aspect is not relevant to citizenship (under s 8 of the Act).
[18] Mr Rafiq’s claim of a breach of his right to freedom of expression presupposes he could make abusive statements, including ones constituting criminal offences, without consequence. As such, the claim is misconceived.
[19] Mr Rafiq’s claim of a breach of his right to natural justice suffers the same difficulty, in that Mr Rafiq presupposes he could bring vexatious claims without consequence.
[20] So, Mr Rafiq’s claim succeeds to the extent the Minister erred as set out at [16]. Mr Rafiq’s other contentions fail.
Relief
[21] Mr Rafiq sought a direction requiring the Minister to grant citizenship. Such relief would be extraordinary for reasons that are obvious. I decline it. There is no basis for damages either, let alone the $2,000,000 sought. The figure borders misadventure, or worse.
8 The Act.
[22] This leaves one point. Because the decision goes back to 2017, circumstances might have changed since then. Consequently, there is little utility in requiring the Minister to reconsider the decision. Instead, Mr Rafiq may re-apply for citizenship if he wishes.9 I record the Crown’s undertaking it will waive the fees associated with the process.
Result
[23]The claim succeeds to the extent identified at [16], but is otherwise dismissed.
[24] The decision is quashed as unlawful. Mr Rafiq may re-apply for citizenship if he wishes.
Costs
[25] I will adjudicate these if necessary. I record the obvious: Mr Rafiq is self-represented.
……………………………..
Downs J
9 Mr Rafiq said this would be “pointless” as the Minister would decline the application.
2
1