IN THE HIGH COURT O F NEW ZEALANDAUCKLAND REGISTRY                                                                   CIV-2...
[I]   The plaintiff in this proceeding has lived in New Zealand since 12 April2000. Whilst here, he has gone under the nam...
[7]        Mr Joseph remained in custody awaiting execution between 1993 and 1995.In 1995 he was able to escape from priso...
[l31   Mr Joseph applied for New Zealand citizenship on or about 29 April 2003. Indoing so he completed a detailed applica...
him of his right to apply to this Court for a review of the sufficiency of the groundsthat the Minister intended to rely u...
(e)    that the applicant has sufficient knowledge of the English                    language:             (0     that the...
order, and must advise the person of his or her right to have the sufficiency of thosegrounds reviewed by the Court.      ...
Onus of proof[26] An application under S 19(2) does not constitute either an appeal from, or                              ...
(a)     What grounds does the Minister intend to rely upon in the present               case?       (b)     Did Mr Joseph ...
through fraud, false representation or wilful concealment of relevant       information.       You are advised that you ha...
or by wilful concealment of relevant information". These factors relate back to therequirement that an applicant for citiz...
[37]       Although this is not a feature of the present case, the impugned conduct doesnot have to be that of the applica...
[41]   I take fraud in this context to mean conduct involving actual dishonesty. Inorder to constitute a false representat...
[45]    The relevant sections of Mr Josephs application for citizenship, and theinformation that he provided when he compl...
this proceeding does not provide any basis to justify those comments. I thereforeproceed on the basis that Mr Joseph acqui...
background checks that they would normally have done. In particular, it preventedthem from discovering about his offending...
[57] The Minister proceeded on the basis that Mr Joseph satisfied the goodcharacter requirement because he had no previous...
where it has been acquired by mistake, and where the deprivation of citizenshipwould render the person stateless. Parliame...
[65]       I understand and appreciate Mr Josephs concerns. They are real, and theyare understandably very important to hi...
1701       Secondly, Mr Josephs non-disclosure of these matters was not an isolatedincident. He had obtained refugee statu...
complainant to hand his car over to Mr Josephs flatmate, and also to pay hisflatmate a sum of money. The two men then drov...
until 9 February 2001. It is therefore very likely that the Danish offending, and theconsequences of it, would have been s...
view that those factors provide ample grounds to justify the Minister making anorder under s 17 of the Act depriving Mr Jo...
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Joseph v minister of internal affairs

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Fraudster, terrorist, false claimant, bludgerer and pseudo refugee, CIA favours man, ADSL "dirty work" specialist and NZ Police ATU agent provocateur

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Joseph v minister of internal affairs

  1. 1. IN THE HIGH COURT O F NEW ZEALANDAUCKLAND REGISTRY CIV-2011-404-3522 [2012] NZHC 49 UNDER the Citizenship Act 1977 BETWEEN JOHN JACOB ABRAHIM JOSEPH Plaintiff AND MINISTER OF INTERNAL AFFAIRS DefendantHearing: 3 February 2012Counsel: N W Ingram QC and J Cox for plaintiff K G Stephen and J Andrew for defendantJudgment: 24 February 2012 JUDGMENT O F LANG J [on application for declaration under s 19(2) of the Citizenship Act 19771 This judgment was delivered by me on 24 February 2012 at 4 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Date... ... ... ... ...JOHN JACOB ABRAHIM JOSEPH V MINISTER OF INTERNAL AFFAIRS HC AK CIV-2011-404-3522 (24February 20121
  2. 2. [I] The plaintiff in this proceeding has lived in New Zealand since 12 April2000. Whilst here, he has gone under the name John Jacob Abrahim Joseph. Hisbirth name, however, was Salam Mansoor Abdelabbus AI-Bawi. He was born inMandali, Iraq on 21 October 1975.[2] After arriving in New Zealand, Mr Joseph was initially granted refugeestatus. He was subsequently granted residency, and in September 2003 he became aNew Zealand citizen.[3] The Ministry of Internal Affairs ("the Ministry") subsequently learned of MrJosephs original name, and it also discovered that he had given a false date of bitthwhen he arrived in New Zealand. He had provided the same information in hisapplications for refugee status, residency and citizenship. In addition, the Ministrydiscovered that Mr Joseph had failed to disclose details of a criminal offence that hecommitted whilst in Denmark in 1998.[4] The Ministry recommended to the Minister that he should make an orderunder s 17 of the Citizenship Act 1977 ("the Act") depriving Mr Joseph of NewZealand citizenship. The Minister then gave the required notice to Mr Joseph of hisintention to make that order. Mr Joseph now applies to this Court for a declarationunder s 19(2) of the Act that there are insufficient grounds to justify the Ministermaking an order depriving him of his citizenship.[5] Before turning to consider the issues that the application raises, it isappropriate to briefly further summarise the factual background.Factual background[6] Mr Joseph is a Faylee, or Faili, Kurd. When Saddam Hussein ruled Iraq,Faylee Kurds, including Mr Joseph and members of his family, were the subject ofpersecution by the ruling authorities. Members of his family were executed by theregime, and Mr Joseph himself was arrested on suspicion that he was a politicalactivist. Mr Joseph was interrogated and then sentenced to death.
  3. 3. [7] Mr Joseph remained in custody awaiting execution between 1993 and 1995.In 1995 he was able to escape from prison, and he fled to Denmark. There heapplied successfully for asylum and, later, residency.[8] On 28 July 1998, Mr Joseph was convicted of the offence of loss of libertywith duress, which I take to be the equivalent of the crime of kidnapping under theCrimes Act 1961. On appeal, the Danish Eastern High Court suspended the fourmonth prison sentence that he had received for that offence. The suspension was tolast for a period of two years, and at the expiration of that period the conviction wasto be expunged provided Mr Joseph kept out of trouble in the meantime. Theconviction and the suspended sentence no longer appear in the records held by theDanish authorities.[9] Mr Joseph returned to Iraq in the late 1990s, where he was again arrested anddetained in custody to await execution. With assistance from his family, however, hewas able to escape from custody and fled from Iraq. On this occasion he travelled toNew Zealand. Mr Joseph entered New Zealand using a false Danish passport, a factthat he revealed to immigration authorities very shortly after he arrived in thecountry.[l01 Mr Joseph assumed his present name before leaving Iraq, and he has usedthat name on all official documents that he has completed after arriving in NewZealand. He has also consistently stated that his date of birth is 19 April 1980.[l l ] Mr Joseph says that it was common for Iraqis, particularly Faylee Kurds, tochange their identities in order to survive under the Saddam regime. He has alsoproduced an email from Iraqi Interpol to Wellington Interpol stating that his changeof name was effected legally in 2000.[l21 On 18 April 2000, Mr Joseph applied for refugee status in New Zealand, andhe successfully attained that status on 13 June 2001. On 19 November 2001, MrJoseph applied for New Zealand residency, and this was also granted.I Crimes Act 1961, s 209
  4. 4. [l31 Mr Joseph applied for New Zealand citizenship on or about 29 April 2003. Indoing so he completed a detailed application form. On 26 June 2003, he receivedadvice that his application had been successful, and he was granted New Zealandcitizenship after taking the oath of allegiance at a ceremony on 8 September 2003.Two days later, he applied for a New Zealand passport in the name of John JacobAbrahim Joseph, whose date of birth was stated to be 19 April 1980.[l41 In 2005 Mr Joseph met and began living with a MS Belinda DufTy. In March2007 that relationship produced a child, Ali Duffy-Bawi. The relationship betweenMr Joseph and MS DufTy came to an end in 2008. Since that time there have beenprotracted proceedings in the Family Court regarding the contact that Mr Joseph isable to have with his son. He is now able to have contact with his son on a regularbasis. He has been in a stable relationship with another woman since 2008.[l51 Meanwhile, the New Zealand authorities learned of Mr Josephs originalname and true birth date as a result of enquiries that the police made throughInterpol. These occurred after Mr Joseph had been required to provide the policewith his fingerprints following an incident that had resulted in his arrest.[l61 In February 2006, the police laid four indictable charges against Mr Josephunder the Crimes Act 1961, the Citizenship Act 1977 and the Passports Act 1992.These related to Mr Josephs failure, when completing official documents afterarriving in New Zealand, to disclose his original name and date of birth, and detailsrelating to the criminal offence of which he had been convicted in Denmark. MrJoseph ultimately pleaded guilty to the charges, and on 18 March 2008 he wassentenced to six months home detentiox2 He later sought to appeal against hisconviction, but the Court of Appeal dismissed the appeal on 27 July 2010.~[l71 On 17 May 2011, the Minister of Immigration served a notice on Mr Josephpursuant to s 19(1) of the Citizenship Act 1977. This advised Mr Joseph that theMinister intended to deprive him of his New Zealand citizenship, and also advisedR v AI-BawiDC Auckland CRI-2006-004-013465,8 March 2008 1 Al-Bawiv R [2010] NZCA 330.
  5. 5. him of his right to apply to this Court for a review of the sufficiency of the groundsthat the Minister intended to rely upon.[l S] Mr Joseph then commenced this proceeding, in which he seeks a declarationthat there are insufficient grounds to make an order depriving him of his NewZealand citizenship.The statutory framework[l91 The grant of New Zealand citizenship is governed by s 8 of the Act, whichrelevantly provides: 8 Citizenship by grant (1) The Minister may authorise the grant of New Zealand citizenship to any person, including a person who may be a New Zealand citizen by descent, w h e (a) has attained the age of 16 years; and (b) is of full capacity; and (c) applies for citizenship in the prescribed manner; and (d) satisfies the Minister that he or she meets each of the requirements specified in subsection (2). (2) The requirements referred to in subsection (l)(d) are as follows: (a) that the applicant is entitled in terms of the Immigration Act 2009 to be in New Zealand indefinitely: (b) that the applicant was present in New Zealand- (i) for a minimum of 1 350 days during the 5 years immediately preceding the date of the application; and (ii) for at least 240 days in each of those 5 years,- being days during which the applicant was entitled in terms of the [[Immigration Act 200911 to be in New Zealand indefinitely: (c) that the applicant is of good character: (d) that the applicant has sufficient knowledge of the responsibilities and privileges attaching to New Zealand citizenship:
  6. 6. (e) that the applicant has sufficient knowledge of the English language: (0 that the applicant intends, if granted New Zealand citizenship, either- (i) to continue to reside in New Zealand; or (ii) to enter into or continue in Crown service under the New Zealand Government, or service under an international organisation of which the New Zealand Government is a member, or service in the employment of a person, company, society, or other body of persons resident or established in New Zealand.[20] Sections 17(2) and (3) of the Act empower the Minister to deprive a citizen ofcitizenship acquired by grant under the Act provided certain requirements are met.They relevantly provide: 17 Deprivation of New Zealand citizenship in case of fraud, etc (2) Subject to section 19 of this Act, 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. (3) The Minister may not deprive a person of New Zealand citizenship under subsection (2) if- (a) the citizenship was acquired by mistake; and (b) to deprive the person of that citizenship would leave the person stateless.[21] Section 17(2) is subject to the Courts power of review under s 19 of the Act.Before making an order depriving any person of New Zealand citizenship unders 17, the Minister must first serve on that person a notice complying with therequirements set out in s 19(1). The notice must advise the person of the fact that theMinister intends to make an order depriving him or her of New Zealand citizenship,and must cite the section of the Act under which grounds exist to make the order.The notice must also specify the grounds on which the Minister intends to make the
  7. 7. order, and must advise the person of his or her right to have the sufficiency of thosegrounds reviewed by the Court. -[22] The power to apply to the Court is contained in s 19(2), which provides: 19 Court review of grounds for depriving person of citizenship (2) Every person upon whom a notice is served under subsection (1) of this section may, within 28 days after it is sewed on him, apply to the [High Court] for a declaration that there are insufficient grounds to justify the making of an order under section 16 or, as the case may require, section 17 of this Act depriving the applicant of New Zealand citizenship; and the Court may make or refuse to make such a declaration accordingly.[23] Where the Court has made a declaration that there are insufficient grounds tojustify the making of the order under either s 16 or s 17, the Minister may notthereafter, without fresh cause, make any order depriving the person of New Zealandcitizen~hi~.~[24] Sections 19(7) and (8) provide the Court with wide powers in considering anapplication for review. It may receive as evidence any statement, document,information or matter that may assist it to deal justly with the application, whether ornot it would othenvise be admissible in proceedings before the Court. It may alsohear evidence in private, and prohibit publication of evidence where it is satisfiedthat it is desirable to do so by reason of the confidential nature of the evidence.[25] Importantly, the Court must only consider the sufficiency of the grounds uponwhich the Minister intends to rely. It does not embark upon its own enquiry as towhether other grounds also exist. It has been said that the Court bears a "heavyresponsibility"s when making a decision under s 19(2), because its determination isfinal and there is no right of appeal to the Court of ~ ~ ~ e a l . ~4 Citizenship Act 1977, s 19(4). Yan v Minister oflnlernal Affairs [l9971 3 N Z L R 450 at 459. Citizenship Act 1977, s 19(9).
  8. 8. Onus of proof[26] An application under S 19(2) does not constitute either an appeal from, or Instead, jurisdiction under s 19(2) isjudicial review of, the Ministers d e ~ i s i o n . ~limited to making a declaration that there are insufficient grounds to justify themaking of an order under s 19, or refusing to make such a dec~aration.~[27] As counsel for Mr Joseph points out, there is some conflict in the authoritiesregarding the issue of onus of proof. In Wang v Minister of Internal Affairs,Randerson J considered that the legal burden rests on the plaintiff throughout toprove that there are insufficient grounds to justifying the making of the order,although the evidential burden may shift from one party to another during thehearing.9 In Yan v Minister oflmmigration, Hammond J considered that reference tothe onus of proof was not helpful, and that while the working onus may rest on theplaintiff, the ultimate burden rests on the ~ i n i s t e r . "[28] I do not consider that it is helpful in this context to dwell at any length on theissue of whether or not either party bears the onus of proof. An application under s19 is unlikely to be determined having regard to any discernible onus. In practice,the applicant strives to persuade the Court that the asserted grounds are insufficient.The Minister, on the other hand, seeks to justify his signalled intention to make theorder depriving the applicant of his or her citizenship. The Court must reach its ownconclusion as to the ultimate issue. It has the task of weighing the competingarguments, and determining as an exercise of judgment whether the grounds uponwhich the Minister relies are insufficient to justify an order depriving the applicantof New Zealand citizenship.Preliminary Issues[29] It is necessary to decide three preliminary issues. They are: Wang v Minister of Internal Affuirs 119981 1 NZLR 309 at 3 16. Idem. wang, above n 7 at 3 17.10 Yun, above n 5 at 460.
  9. 9. (a) What grounds does the Minister intend to rely upon in the present case? (b) Did Mr Joseph procure his grant of citizenship, or a requirement of the grant, through one of the grounds relied upon? (c) Do N e w Zealands international obligations in relation to children have any relevance in the present context?(a) What grounds does the Minister intend to rely upon in the present case?[30] This issue arises because of the manner in which the Minister framed thenotice that he served on M r Joseph pursuant to s 19(1) of the Act. The notice said: NOTICE OF INTENTION TO DEPRIVE A PERSON OF NEW ZEALAND CITIZENSHIP Pursuant to the Citizenship Act 1977, section 19 To: John Jacob Abrahim JOSEPH (aka Salam Mansoor Abdelabbus Al- Bawi) 1B Loch Street Remuera AUCKCAND I, NATHAN GUY, Minister of lntemal Affairs, HEREBY GIVE YOU NOTICE that I intend to order that you are deprived of your New Zealand citizenship. I consider that I have grounds for making such an order pursuant to section 17 of the Citizenship Act 1977 as (a) You acquired New Zealand citizenship by grant pursuant to the Citizenship Act 1977; and (b) That grant or the grant requirement was procured by fraud, false representation, wilful concealment of relevant information, or by mistake. Your application for citizenship was considered under section 8 of the Citizenship Act 1977. One of the prerequisites pursuant to that section is that you satisfy the Minister of Internal Affairs you are of good character. The Department of Internal Affairs and the then Minister of Internal Affairs were unaware of your criminal offending, false refugee and residence applications as well as your false identity at the time you received the grant of citizenship. The grounds upon which I intend to make this order is that you procured the grant of New Zealand citizenship or the grant requirement
  10. 10. through fraud, false representation or wilful concealment of relevant information. You are advised that you have the right to have this matter reviewed by the High Court of New Zealand pursuant to section 19 of the Citizenship Act 1977. If you do exercise that right you must, within 28 days after the service of this on you, apply to the High Court for a declaration that there are insufficient grounds to justify the making of an order under section 17 of the Citizenship At 1977 depriving you of New Zealand citizenship. Attached to this notice is a copy of section 19 of the Citizenship Act which specifies the procedures to be followed. Dated at Wellington, New Zealand this 11" day of May 201 1 Signed: Hon. NATHAN GUY Minister of Internal Affairs[31] Counsel for Mr Joseph argues that the wording of sub-paragraph (b) in thesecond paragraph of the notice demonstrates that one of the grounds upon which theMinister proposed to rely was that Mr Josephs grant of citizenship had beenacquired by mistake. That has relevance because, where the Minister relies upon theground of mistake, s 17(3) prohibits the Minister from making an order depriving aperson of citizenship where the deprivation of citizenship will leave the personstateless. The same prohibition does not apply in cases where the grant has beenprocured or acquired through fraud, false representation or wilful concealment ofrelevant information.[32] Mr Joseph wishes to argue that an order depriving him of New Zealandcitizenship will render him stateless. For that reason he has an obvious interest incontending that one of the grounds upon which the Minister proposes to rely is thatof mistake.[33] I consider that the answer to this issue lies in the last sentence of the fourthparagraph of the notice. In that sentence the Minister states that the grounds uponwhich he intends to make an order depriving Mr Joseph of his citizenship are that MrJoseph procured the grant, or the grant requirement, "by fraud, false representation
  11. 11. or by wilful concealment of relevant information". These factors relate back to therequirement that an applicant for citizenship must be a person of good character.-[34] I view the stiatement in sub-paragraph (b) of the second paragraph asrecording the Ministers view that it was open to him to make an order depriving MrJoseph of his New Zealand citizenship on all four grounds. I consider, however, thatthe omission of any reference to mistake in the last sentence of the fourth paragraphwas deliberate. It confirms that, although the Minister believed that he was entitledto rely on the ground of mistake, he does not intend to rely on that ground. Instead,he intends to rely solely on the grounds of fraud, false representation and wilfulconcealment of relevant facts. As a consequence, S 17(3)(b) will not prevent theMinister from making the order on the basis that it will render Mr Joseph stateless.(b) Did Mr Joseph procure his grant of citizenship, or a requirement of that grant, by fraud, false representation or wilful concealment of relevant information?General principles[35] Citizenship has been said to amount to a fundamental human need or right.12For that reason a person should not be deprived of that status lightly. The Acttherefore restricts the circumstances in which the Minister may make an orderdepriving a person of citizenship. The Minister may only take that step where theperson acquired or procured his or her citizenship by fraud, false representation,wilful concealment of relevant information or mistake."[36] In this context the word "procure" means that the conduct in question was asubstantial cause of the grant of citizenship, or satisfaction of a grant requirement.I4It need not, however, be the principal or overwhelming cause." Citizenship Act 1977, s 8(2)(c)."un, above n 5 at 456.l 3 Citizenship Act 1977, s 17(2).l4 Wung, above n 7 at 3 15, citing Rujun v Minister of Internal Affair HC Auckland M 1040/95,9November 1996 at 7-8." Idem.
  12. 12. [37] Although this is not a feature of the present case, the impugned conduct doesnot have to be that of the applicant for citizenship. It may be the conduct ofsomebody acting on that persons behalf in relation to the application. The groundsmay therefore still be made out even if the applicant had no knowledge of theconduct in question, and was therefore an entirely innocent party.[38] In Hao v Minister of Internal Affairs, Hugh Williams J said:I6 Citizenship and nationality are ... serious matters. For a national of one country to apply for the grant of citizenship of another country is similarly a serious matter. In making such applications, applicants must be taken to be aware, first, that the country to which they are applying for citizenship relies on the correctness of the information given to safeguard the integrity of the citizenship system and, secondly, that the country to which they are applying is entitled to information beyond the strictly literal in order to protect that system. They must also know that it is, in most cases, possible only with considerable difficulty for the country to which they are applying to check the correctness of the information provided. Therefore, they should he aware that, to acquire the privilege of new citizenship, they should approach the giving of information in a reasonably liberal fashion and should reply with some expansiveness to questions such as "Is there anything else we should know that may affect your application?", leaving it to the country to which the application is being made to decide whether the information provided does so affect their application.[39] The Ministers power to deprive a person of citizenship reflects theunderlying principle that, in granting an application for citizenship, the Ministerrelies upon the information contained in the application as constituting a full andcorrect statement of the applicants true identity and material circumstances. If thatproves not to have been the case in one or more material respects, the Minister willhave granted the application on the basis of incorrect information. As aconsequence, the original justification for the grant may be vitiated.[40] Conduct that amounts to fraud, the making of a false representation and thewilful concealment of relevant information are different forms of conduct thatnevertheless overlap to a significant degree. The three grounds share a commonfeature. Each represents a form of conduct that is engaged in deliberately, and forthe purpose of either procuring a grant of citizenship or satisfying a grantrequirement.16 Hao v Minister of Internal Affairs HC Auckland CIV-2009-404-005610, 7 September 2009 at [78].
  13. 13. [41] I take fraud in this context to mean conduct involving actual dishonesty. Inorder to constitute a false representation, it is necessary for the person making the-representation to know that it is false or untrue. Wilful concealment of relevantinformation will occur where there is a deliberate omission of information that islikely to be relevant to the decision that the Minister is required to make.[42] As the present case demonstrates, conduct constituting one ground may alsoconstitute another. By way of example, making a false representation anddeliberately concealing relevant information may also amount to fraud. Thedeliberate concealment of relevant information may also result in a falserepresentation. Dishonesty is not, however, an essential element of making a falserepresentation or deliberately withholding relevant information. Those forms ofconduct may occur where the conduct falls short of being dishonest. Importantly,however, both grounds require the applicant for citizenship, or somebody acting onhis or her behalf, to have acted deliberately.[43] The deliberate nature of these forms of conduct distinguishes them from agrant, or grant requirement, being procured or acquired by mistake. Mistake is a lessculpable form of conduct, because it does not involve a deliberate or intentional acton the part of the applicant. The fact that mistake is less culpable no doubt promptedthe inclusion of s 17(3), which prohibits the Minister from depriving a person ofcitizenship in cases involving mistake where that would leave the person stateless.This case[44] The Minister contends that the manner in which Mr Joseph completed threeseparate aspects of his application for citizenship amount to fraudulent conduct, themaking of false representations andlor the wilful concealment of relevantinformation. These relate to Mr Josephs failure to provide details of his originalname, his true birth date and the offending that occurred whilst he lived in Denmark.The Minister contends that these deliberate acts and omissions enabled Mr Joseph tosatisfy the grant requirement that he be a person of good character, and therebyenabled him to procure New Zealand citizenship.
  14. 14. [45] The relevant sections of Mr Josephs application for citizenship, and theinformation that he provided when he completed them, are as follows: GivedFirst name(s)Show given names from yourbirth certificate, unless your John Jacob Abrahimname has changed (example:by marriage, or statutorydeclaration FamilytLast name@) Joseph Other Names (e.g birth name, unmarried name, name change, alias, English names fused) Why has your name changed? (please tick) nmarriage udeclaration ncommon use mother (explain). .- Birthplace Birthdate (town, countv on your birth certificate) (day, month, year) Baghdad. Iraq 19/04/1980Please list: Do you have any court convictions in New Zealand or overseas?Offences against the law. q Yes fist below) L3 NoAN legal action taken againsf Are YOU, or have you been involved in any legal action oryou. investigation? Yes Oist below) El NoInvestigations in which youwere a suspect. Conviction/charge or legal action Sentence Country DateInclude all cases in NewZealand or overseas. Continue on your own paper fyou need to.[46] Questions have been raised as to the propriety of the circumstances in whichMr Joseph assumed his present name. When the Court of Appeal dismissed hisappeal against conviction, it referred to Mr Josephs present name being "entirelyfictitious" and "obtained by corrupt means fiom Iraqi officials"." The evidence inn AI-Buwi v R, above n 3 at [15].
  15. 15. this proceeding does not provide any basis to justify those comments. I thereforeproceed on the basis that Mr Joseph acquired his new name validly.[47] This does not assist Mr Joseph, however, because the application forcitizenship clearly required him to provide full details of any other name that he hadused in the past. If he had used a different name in the past, he was also required toexplain how he came t o change his name.[48] Mr Joseph now says that he did not refer to his original name and true date ofbirth because he feared that those details might alert the Iraqi authorities to hispresence in New Zealand. I find that to be an unconvincing explanation, particularlygiven the fact that he had been living in New Zealand for more than three years bythe time he applied for citizenship.[49] The application form required Mr Joseph to be completely candid regardinghis name and any changes to it. It also required him to enter his true date of birth. Indeliberately omitting to supply any details about his birth name, Mr Joseph wilfullyconcealed relevant information. In stating that his date of birth was 19 April 1980,Mr Joseph made a false representation. Whilst it is possible for a person to legallychange his or her name, it is not possible to similarly change a date of birth.[50] Both pieces of information were important, because they would have enabledthe New Zealand authorities to make background checks about Mr Joseph.Independent enquiries by the New Zealand authorities may be necessary, forexample, to verify an applicants assertion that he or she has never been the subjectof a criminal conviction or a legal investigation overseas.18 The only way in whichthe New Zealand authorities can make such enquiries is by requesting assistancefrom appropriate agencies in other countries. That cannot be done unless theauthorities in New Zealand know the applicants correct date of birth, as well as allnames that he or she has used in the past.[51] The fact that Mr Joseph failed to disclose this information thereforeprevented the New Zealand authorities from carrying out the full range of18 See the passage from Hao cited above at [38].
  16. 16. background checks that they would normally have done. In particular, it preventedthem from discovering about his offending in Denmark.[52] I consider that the provision of this information was fundamentally importantto Mr Josephs application for citizenship. His failure to disclose the true positionmeant that the Minister granted citizenship to an applicant whose original name andtrue date of birth were unknown. It also prevented the New Zealand authorities frommaking background checks about him that may have called into question hiseligibility for citizenship.[53] Mr Joseph was similarly unforthcoming about his criminal offending inDenmark. He now explains that he believed that the Danish conviction and sentencehad been expunged. For that reason he believed that the offending in Denmark wasof no relevance to his application for citizenship.[54] That explanation is also unconvincing, particularly given the information thatthe application form required the applicant to provide. The section of the formheaded "Character" did not merely require the applicant to supply information aboutprevious overseas convictions. It also sought information about any legal actions orinvestigations to which the applicant had been subject overseas.[55] Even if Mr Joseph genuinely believed that his Danish conviction andsentence had been expunged, he could not avoid disclosing the investigation andlegal proceedings that led to them being imposed. That information, too, wasimportant. New Zealand has an obvious interest in knowing about all legalinvestigations and actions in which an applicant has been involved before coming tothis country. Such information assists the Minister in reaching a conclusion as towhether the applicant satisfies the good character requirement.[56] Mr Joseph made a deliberate decision to withhold the information about hisoffending in Denmark. As a result, he deliberately concealed relevant information.The Minister was required to be satisfied that Mr Joseph was a person of goodcharacter. Any omission of previous criminal offending must be viewed seriously.
  17. 17. [57] The Minister proceeded on the basis that Mr Joseph satisfied the goodcharacter requirement because he had no previous convictions, and he had neverbeen subject to any legal investigation or action overseas. As it later transpired, thisinformation was not correct. I consider that Mr Josephs failure to provide his birthname and true date of birth, coupled with his failure to provide any details regardinghis offending in Denmark, enabled him to satisfy the grant requirement that anapplicant be of good character. It was therefore also a substantial cause of the grantof citizenship.[58] The only remaining issue is whether Mr Josephs conduct also amounted tofraud.[59] I have some hesitation about making a finding of fraud without having seenand heard Mr Joseph give evidence. In the end, however, I cannot escape theconclusion that a deliberate failure to divulge such important information amountedto dishonesty. Mr Joseph knew the importance of the information that the formrequested. The details that he failed to provide effectively meant that the NewZealand authorities had no means of checking whether he was a person of goodcharacter. In those circumstances I find that the grant of citizenship was alsoprocured by fraud.(c) To what extent are New Zealands obligations under international instruments relevant in the present context?[60] Counsel for Mr Joseph contends that New Zealands obligations under twointernational instruments are relevant in the present context. First, he submits thatany decision by the Minister to deprive a person of citizenship must have regard toNew Zealands obligations under the United Nations Convention on the Reduction ofStatelessness.*[61] The answer to this submission lies in the fact that, as previously noted,I9s 17(3) prohibits the Minister from depriving a person of New Zealand citizenship United Nations Convention on the Reduction of Statelessness 1961 (entered into force 13December 1975). New Zealand ratified the Convention on 20 September 2006.l9 ~t [43].
  18. 18. where it has been acquired by mistake, and where the deprivation of citizenshipwould render the person stateless. Parliament has therefore determined how NewZealand will give effect to its international obligations in relation to statelessness inthis context. It has done that by limiting the Ministers power to order deprivation ofcitizenship in cases where the persons citizenship has been acquired by mistake. Insuch cases the Minister has no power to make an order where the effect of the orderwould be to render the person stateless.20 In all other cases, however, the Ministerretains the power to order depriving the person of citizenship even though the orderwill have that effect. The fact that Parliament has given such close attention to theissue of statelessness in the Act means that the Minister and the Court cannot takethat issue into account in cases where citizenship was procured otherwise than bymistake.[62] Secondly, counsel for Mr Joseph contends that New Zealands internationalobligations in relation to children are relevant. He submits that, as the Courts haverecognised in cases under the Immigration Act 1987; the Citizenship Act 1977 mustbe interpreted having regard to New Zealands international obligations under theUnited Nations Convention on the Rights of the Child ("uNcRoC").~~[63] I do not accept that submission, principally because any decision that theMinister might make in relation to Mr Josephs citizenship will not directly affect thecitizenship or welfare of Mr Josephs son. Mr Josephs son will remain a NewZealand citizen regardless of any decision that the Minister might make in relation toMr Josephs citizenship. His son will therefore be entitled to remain in New Zealandand enjoy all the rights, privileges and responsibilities of New Zealand citizenship.[64] Mr Josephs real concern relates to the likely consequences of an orderdepriving him of New Zealand citizenship. He fears, with some justification, thatthis will prompt a sequence of events that will ultimately result in him beingdeported from New Zealand. Deportation would prevent him from having anyfurther contact with his young son. Citizenship Act 1977, s 17(3).20 See for example Ye v Minister oflmmigration [2010] 1 NZLR 104 (SC) at [24].212%nited Nations Convention on the Rights of the Child 1989 UNT 1577 (opened for signature 20November 1989, entered into force 2 September 1990).
  19. 19. [65] I understand and appreciate Mr Josephs concerns. They are real, and theyare understandably very important to him. The Ministers decision regarding MrJosephs citizenship will not, however, lead automatically andtor inevitably to MrJosephs deportation. Any decision to deport Mr Joseph would be made by theimmigration authorities, who are bound to apply the provisions of the ImmigrationAct 2009.[66] Mr Joseph would have the right to appeal to the Immigration and ProtectionTribunal on humanitarian grounds against any deportation order.23 If that wasunsuccessful, he could raise the likely effect of deportation on his son with anyimmigration officer. The immigration officer would then be obliged to considerwhether to consider cancelling the deportation order in light of New Zealandsinternational obligations.24 I consider those to be the appropriate points at which MrJosephs concerns regarding loss of contact with his son should be addressed. Itwould be premature for them to assume relevance at this stage.[67] These conclusions lead me to consider the ultimate issue, which is whetherthere are insufficient grounds to justify an order depriving Mr Joseph of his NewZealand citizenship.Are there insufficient grounds to justify an order depriving Mr Joseph of hiscitizenship?[68] Several factors are relevant in this context. The first of these is the nature ofthe conduct forming the grounds upon which the Minister relies.[69] My earlier conclusions are relevant in this context. Mr Joseph elected not todisclose matters that he plainly knew to be relevant to the Ministers decision. Thisled directly, in my view, to him satisfying the good character requirement and this inturn was a substantial factor in the Ministers decision to grant him citizenship. Theeffect of the non-disclosure was therefore significant.23 Immigration Act 2009, s 206.24 Immigration Act 2009, s 177(2).
  20. 20. 1701 Secondly, Mr Josephs non-disclosure of these matters was not an isolatedincident. He had obtained refugee status under his new name and using a false dateof birth. He had also obtained residency by the same means. The true position didnot come to light until several years after he was granted citizenship. Even then hedid not volunteer the information. It only emerged after the police sent hisfingerprints overseas for checking by Interpol.[71] Moreover, Mr Josephs status as a refugee has now been cancelled on theground that he failed to disclose a material fact when he applied for that status. TheRefugee Status Appeal ~ u t h o r i has determined that Mr Joseph should never have t~~~been granted refugee status, because he failed to disclose that he already enjoyedresidency status in Denmark when he applied for refugee status in New Zealand. MrJoseph conceded at the hearing before the Authority that he had procured his refugeestatus by fraud, by providing false or misleading information andfor by wilfullyconcealing relevant inf~rmation.~ Authority described his failure to disclose the Thefact of his Danish residency as "deceit".28 Mr Joseph sought judicial review of theAuthoritys decision, but his application was unsu~cessful.~~[72] The nature and gravity of the offending in Denmark also needs to be takeninto account. This occurred on 20 June 1998, after Mr Joseph became involved in adispute about a debt owed to his flatmate by the complainant. Mr Joseph and anassociate went to the complainants shop, where they used a pretext to persuade thecomplainant to get into the back seat of their car. They then drove away from theshop with the complainant in the back seat. During the journey, which lasted for fiveto ten minutes, Mr Joseph and his associate took turns sitting in the back seat of thevehicle and striking the complainant. Mr Joseph also threatened to kill him.[73] The car eventually stopped in a deserted industrial area. Both men theninflicted further violence on the complainant. This took the form of physical blowsand threats to the complainants life. This prompted the complainant to sign anadmission of debt in favour of Mr Josephs flatmate. The admission provided for the26 Refugee Appeal No. 76171 (1 1 March 2009). lbid at [180]. lbid at [181].29 A Y Refugee Status Appeals Authority HC Auckland CIV-2009-404-3379,6 December 20 10.
  21. 21. complainant to hand his car over to Mr Josephs flatmate, and also to pay hisflatmate a sum of money. The two men then drove the complainant back to his shop,where they warned him that he had to honour the terms of the admission. The entireincident took between 30 minutes and an hour.[74] On 28 July 1998, Mr Joseph and his associate each received sentences of fourmonths imprisonment for their offending, whilst Mr Josephs flatmate received asuspended sentence of three months imprisonment.[75] As noted earlier, the Eastern High Court suspended Mr Josephs sentence ofimprisonment when it reviewed his case on appeal on 9 February 1999. Mr Josephhad by that stage spent approximately one month in custody and in isolation. TheCourt held that it was not necessary for him to complete his sentence. Thesuspension of Mr Josephs sentence was conditional, however, on Mr Joseph beingon probation for two years, and not committing a punishable offence during thatperiod.[76] Mr Joseph now describes his offending in Denmark as being "minor", butthat description significantly understates its gravity. The offending involved theabduction and detention of the complainant against his will for a reasonablysignificant period. It also involved the application of threatened and actual violenceto the complainants person on more than one occasion. Furthermore, it resulted inthe complainant signing the admission of debt against his will.[77] I accept, however, that the Eastem High Court must have viewed theoffending as being at the lower end of the scale for offending of that type. That canbe the only explanation for its conclusion that Mr Joseph should not be required tocomplete his sentence, and should instead remain on probation for two years.[78] I also accept that the offending occurred some time ago, and at a time whenMr Joseph was just 22 years of age. Having said that, it occurred just two yearsbefore Mr Joseph arrived in New Zealand, and five years prior to the date uponwhich he applied for citizenship. Mr Joseph was still serving the term of probationimposed by the Eastern High Court when he arrived in this country. That did not end
  22. 22. until 9 February 2001. It is therefore very likely that the Danish offending, and theconsequences of it, would have been sufficiently recent in 2003 to persuade the-Minister that Mr Joseph could not satisfy the good character requirement. It remainsa very relevant factor today.[79] Counsel for Mr Joseph points out that, other than the charges that Mr Josephhas faced since arriving in New Zealand, he has not offended over the last 13 years.I accept that submission as far as it goes, but the charges to which Mr Joseph enteredguilty pleas in this country were serious. They were laid indictably, and allegedfraudulent conduct in respect of his applications for refugee status, residency,citizenship and the issue of a New Zealand passport. The seriousness of the chargesis reflected in the fact that the Judge adopted a starting point of three yearsimprisonment. He agreed with the Crown that offending of this type had "severeconsequences for the integrity and reputation of New Zealands international bordersecurity".30[80] Counsel for Mr Joseph submits that Mr Joseph has now paid the price for hisunlawful conduct, and that it is not necessary to punish him further by depriving himof his citizenship. I agree that Mr Joseph has now paid the price for his actions, inthe sense that he has served the sanctions imposed upon him in relation to thoseactions. That does not answer the question, however, of whether he should retain astatus that he effectively procured by dishonest conduct.[Sl] Finally, counsel for Mr Joseph points out that, to the extent that Mr Josephshealth has permitted, he has proven to be an industrious worker and has made apositive contribution to the community. He now suffers from very serious physicaland mental health issues, and this detracts significantly from his ability to lead anormal and productive life.[S21 That submission has some force, but it does not persuade me that insufficientgrounds exist to justify the removal of Mr Josephs citizenship. The manner inwhich Mr Joseph procured his citizenship counts significantly against him, as doesthe conduct that led to his convictions in both New Zealand and Denmark. I take theO R v AI-Bawi, above n 2 at [9].
  23. 23. view that those factors provide ample grounds to justify the Minister making anorder under s 17 of the Act depriving Mr Joseph of his citizenship.Result[83] The application is dismissed.Costs[84] If counsel cannot reach agreement regarding costs, memoranda may be filedaddressing that issue.Solicitors: Blomkamp Cox, AucklandCrown Law, WellingtonCounsel:N W Ingram QC, Auckland

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