RAZDAN RAFIQ AND SECRETARY FOR INTERNAL AFFAIRS and CHIEF EXECUTIVE FOR DEPARTMENT OF INTERNAL AFFAIRS s
[2024] NZHC 2964
•11 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-000206
[2024] NZHC 2964
UNDER Judicial Review Procedure Act 2016, High Court Rules 2016, Privacy Act 1993, New Zealand Bill of Rights Act 1990 IN THE MATTER OF
An application for judicial review
BETWEEN
RAZDAN RAFIQ
Applicant
AND
SECRETARY FOR INTERNAL AFFAIRS and CHIEF EXECUTIVE FOR
DEPARTMENT OF INTERNAL AFFAIRS
Respondents
Hearing: 3 October 2024 Appearances:
Applicant in Person
S J Smith and H T N Fong for Respondents
Judgment:
11 October 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 11 October 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………
RAFIQ v SECRETARY FOR INTERNAL AFFAIRS & OR [2024] NZHC 2964 [11 October 2024]
Introduction
[1] Mr Razdan Rafiq, the applicant, is a Fijian citizen and permanent resident in New Zealand. He has long sought New Zealand citizenship. However, to date he has not been successful with his citizenship applications.
[2] Following a second application for citizenship in 2016, Mr Rafiq made requests to the Department of Internal Affairs (the Department) under the Privacy Act 1993 (PA 1993) for specifically described personal information. In early 2018, the Department responded to that request and disclosed some 32 documents (2018 disclosure letter). Redactions, which constitute the withholding of personal information, were made to four of the 32 documents in that disclosure.
[3] In the substantive proceedings, Mr Rafiq challenges by way of judicial review, the decision of the Department to withhold the redacted information. Mr Rafiq contends that the information was unlawfully withheld, and he seeks by way of remedy
$120 million in damages.
[4] In the present interlocutory application, the Department seeks to strike out the proceedings on the grounds that it discloses no reasonably arguable cause of action and/or is otherwise frivolous, vexatious, and an abuse of process.
Factual background
[5] The withheld information (the redactions to the 32 documents in the 2018 disclosure letter) was personal information withheld pursuant to ss 27(1)(c), 27(1)(a) and 29(1)(f) of the PA 1993.
[6] The reasons for the Department withholding information under the PA 1993 were outlined in the January 2018 disclosure letter, in the appendix of disclosed documents attached to that letter and noted on the redactions to the document.
[7] The 2018 disclosure letter also advised Mr Rafiq of his right to seek an investigation and review with the Privacy Commissioner of the Department’s decision to withhold the information. Mr Rafiq has not taken up that opportunity.
[8] The Department did not receive any correspondence from Mr Rafiq regarding the 2018 disclosure letter until it was served with the present proceedings in February 2024 (over six years later).
[9] In a judgment of 8 February 2023, in Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs,1 Downs J quashed the decision of the Department, declining Mr Rafiq’s application for citizenship made in November 2016, as unlawful. The Department acknowledged that the decision should be quashed. Downs J noted that Mr Rafiq may re-apply for citizenship if he wishes. No further application has been made.
[10] A summary of the disclosed documents containing withheld information, and the grounds for withholding, are outlined below.
Internal memorandum
[11] An internal memorandum was sent between departmental officials on 6 March 2017. It outlined the Department’s findings from an investigation in relation to Mr Rafiq’s citizenship application.
[12] A redaction was made to one paragraph of the memorandum. It was made pursuant to s 27(1)(c) of the PA 1993, being information that “would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial”.
Internal emails
[13] An internal email was sent between departmental officials on 8 September 2011. It discusses “hate mail” letters from Mr Rafiq and charges laid by the Police in relation to the letters.
1 Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs
[2023] NZHC 127.
[14] Two redactions are made to the name of the email’s sender. This information was withheld pursuant to s 29(1)(a) of the PA 1993, being information that “would involve the unwarranted disclosure of the affairs of another individual …”.
[15] An internal email was sent between departmental officials on 12 July 2011. That email concerns Mr Rayshane Mallam (one of Mr Rafiq’s aliases), his citizenship application and his recent correspondence with the Department, including letters from Mr Mallam (i.e. Mr Rafiq) that “could be considered outrageous, offensive, abusive and nonsensical”.
[16] Redactions were made to the fifth bullet point in the email pursuant to s 27(1)(c) of the PA 1993, being information that “would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial”.
Censorship Compliance Unit report
[17] On 6 September 2011, the Censorship Compliance Unit (CCU) of the Department lodged a report regarding letters from Mr Rafiq (these appear to be the same letters referred to in the internal email discussed above at [13]). The CCU report contains a series of emails and related actions that the Department might take in respect of the letters, including bringing charges under the Films, Videos, and Publications Classification Act 1993.
[18] Several redactions were made to identifying information about departmental officials in the CCU report pursuant to s 29(1)(a) of the PA 1993, being information that “would involve the unwarranted disclosure of the affairs of another individual”.
The pleadings
[19] Mr Rafiq seeks to judicially review the Department’s decision to withhold the information in the 2018 disclosure letter on the grounds that:
(a)the decision has no legal basis and is unlawful under the PA 1993 and contrary to information privacy principles (IPP) 6 (access to personal information) of the PA 1993; and
(b)he cannot make a statement of correction to the withheld information in breach of IPP 7 (correction of personal information) of the PA 1993.
[20] Mr Rafiq seeks $120 million in general, compensatory, aggravated and punitive or exemplary damages based on the Department’s decision to withhold his personal information.
[21] The claim for exemplary or punitive damages (described as an extraordinary remedy) is based in part on the claim that the Department declined Mr Rafiq citizenship on 3 November 2017 based on the information withheld.
Relevant legal principles
[22] Rule 15.1 of the High Court Rules 2016 contains two broad grounds for strike out. First, the Court may strike out all or part of the claim if it discloses no reasonably arguable cause of action.2 The Court’s approach to striking out such claims is well- established:3
(a)concluding the facts, whether admitted or not, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;
(b)to be struck out, the proceeding must be clearly untenable, or in other words, the Court must be certain it cannot succeed;
(c)the jurisdiction is to be exercised sparingly, and only in clear cases, reflecting the Court’s reluctance to terminate a claim or defence short of trial;
2 High Court Rules 2016, r 15.1(1)(a).
3 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31]–[33].
(d)the fact that an application raises difficult questions of law or requires extensive argument does not exclude the jurisdiction; and
(e)the Court should be slow to strike out a claim in a developing area of the law.
[23] The second broad ground for strike out is abuse of the Court’s processes, under one of the grounds in r 15.1(1)(b)–(d) of the High Court Rules 2016. Forms of impropriety can include:
(a)prolix, unintelligible or scandalous proceedings,4 which will cause prejudice to a defendant not able to sensibly respond;5
(b)collateral challenges to conclude a proceeding, including bringing proceedings that are “dressed in different garb but [have] the same effect”.6
[24] As with the first ground for strike out, this power will be sparingly exercised; if defective pleadings can be cured, an amended statement of claim is the preferred approach.7
[25] The principles for strike out in relation to judicial review proceedings are no different than those that apply to other civil proceedings.8
Analysis and decision
[26] I find that the Department has made out both grounds for striking out the proceeding pursuant to r 15.1 of the High Court Rules 2016. In a case such as this there is substantial overlap between the two grounds. It is the combination of the
4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
5 Rafiq v Auckland District Court [2013] NZHC 2640 at [21].
6 Dotcom v District Court at North Shore [2017] NZHC 3158 at [25] (footnote omitted).
7 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 4, at [89].
8 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.
following factors that lead me to the conclusion that these proceedings are incapable of success:
(a)The statement of claim makes no more than a bald allegation of illegality. No particular ground of review is specified and the pleading does not in any way engage with the particular legal grounds for the withholding of the information under the PA 1993;
(b)The claim for $120 million in damages is frivolous and fanciful. It is well beyond any conceivable level of recovery. In any event, the damages sought are not available in judicial review proceedings;9
(c)The PA 1993 (relied on by Mr Rafiq) has been repealed and replaced by the Privacy Act 2020 (PA 2020).10 Under the PA 2020, the applicable legislation, the IPP relied on by Mr Rafiq are not enforceable in a court of law, with the exception of IPP 6(1). Where a person alleges an agency has interfered with their privacy (e.g. by breaching one or more of the IPP),11 the correct process is for a complaint to be made to the Privacy Commissioner in the first instance,12 and once this has occurred, a claim may be commenced in the Human Rights Review Tribunal.13 Mr Rafiq has advanced no plausible or credible reason why he has not made a complaint to the Privacy Commissioner;
(d)As to the alleged breach of IPP 6(1), the statement of claim does not engage in any way with the legal grounds relied upon by the Department to withhold information (namely ss 27(1)(c), 29(1)(a) and
(f) of the PA 1993);
9 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423; [2009] 2 NZLR 56 at [61].
10 Privacy Act 2020, sch 1, cl 4 and 5.
11 Privacy Act 2020, s 69(2)(a)(i).
12 Privacy Act 2020, s 70.
13 Privacy Act 2020, ss 97 and 98. The position was the same under the Privacy Act 1993, ss 82 and 83.
(e)Mr Rafiq was advised of his right to complain to the Privacy Commissioner to seek a review of the Department’s decision to withhold information. Instead, he is essentially wasting scarce judicial resources by pursuing unmeritorious proceedings. Furthermore, no plausible explanation has been provided as to why these proceedings have been brought some six years after the making of the impugned decisions;
(f)Even if Mr Rafiq did have a tenable claim, the amount of damages he seeks ($120 million) is not available for an interference with privacy14 and, as indicated above, is manifestly excessive;
(g)Mr Rafiq provides no foundation for his allegation that the Department declined his application for citizenship on 3 November 2017 based on the withheld information in the 2018 disclosure letter. He does not seek in the present judicial review proceedings to challenge the decision declining his citizenship;
(h)To the extent that Mr Rafiq’s claim was directed at decisions relating to his citizenship application (already quashed), it essentially seeks to re- litigate concluded proceedings;15
(i)In seeking to explain why he has not re-applied for citizenship following the quashing of the decision in 2023, Mr Rafiq claims that he would have difficulties making out the grounds for citizenship. I accept that Mr Rafiq does not have to establish any particular reason for seeking the personal information, but the delay in filing the proceedings and the apparent lack of utility to the information sought is a further factor supporting the conclusion that the proceedings are frivolous; and
14 See Hammond v Credit Union Baywide [2015] NZHRRT 6 at [176], which indicates a banding approach to general damages for interference with privacy ranging from $10,000 to $50,000.
15 In a recent decision Rafiq v Secretary for Internal Affairs [2024] NZHC 2043, Tahana J struck out proceedings brought by Mr Rafiq on the grounds of an abuse of process. Her Honour held that the proceedings concern the same defendant and the same decision declining to grant Mr Rafiq citizenship, which were the subject of the proceedings before Downs J in 2023.
(j)Mr Rafiq argued that some of the withheld information likely contained material defamatory of him. However, it is clear from the Department’s correspondence and grounds given for withholding the information that it is confidential and it is difficult to see how there has been the necessary element of publication to establish any claim of defamation.
[27] For all these reasons, I conclude that the proceedings should be struck out. In the circumstances, it is not necessary for me to address the alternative application by the Department, namely the application for security for costs.
Result
[28] The proceedings are struck out in their entirety pursuant to r 15.1 of the High Court Rules 2016.
[29] I order that Mr Rafiq is to pay costs to the Department on a 2B basis, being a total of $11,932.16.
Andrew J
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