Joseph v minister of internal affairs

IN THE HIGH COURT O F NEW ZEALAND
AUCKLAND REGISTRY
CIV-2011-404-3522
[2012] NZHC 49

UNDER the Citizenship Act 1977

BETWEEN JOHN JACOB ABRAHIM JOSEPH
Plaintiff

AND MINISTER OF INTERNAL AFFAIRS
Defendant

Hearing: 3 February 2012

Counsel: N W Ingram QC and J Cox for plaintiff
K G Stephen and J Andrew for defendant

Judgment: 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 (24
February 20121

[I] The plaintiff in this proceeding has lived in New Zealand since 12 April
2000. Whilst here, he has gone under the name John Jacob Abrahim Joseph. His
birth name, however, was Salam Mansoor Abdelabbus AI-Bawi. He was born in
Mandali, Iraq on 21 October 1975.

[2] After arriving in New Zealand, Mr Joseph was initially granted refugee
status. He was subsequently granted residency, and in September 2003 he became a
New Zealand citizen.

[3] The Ministry of Internal Affairs ("the Ministry") subsequently learned of Mr
Joseph's original name, and it also discovered that he had given a false date of bitth
when he arrived in New Zealand. He had provided the same information in his
applications for refugee status, residency and citizenship. In addition, the Ministry
discovered that Mr Joseph had failed to disclose details of a criminal offence that he
committed whilst in Denmark in 1998.

[4] The Ministry recommended to the Minister that he should make an order
under s 17 of the Citizenship Act 1977 ("the Act") depriving Mr Joseph of New
Zealand citizenship. The Minister then gave the required notice to Mr Joseph of his
intention to make that order. Mr Joseph now applies to this Court for a declaration
under s 19(2) of the Act that there are insufficient grounds to justify the Minister
making an order depriving him of his citizenship.

[5] Before turning to consider the issues that the application raises, it is
appropriate 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 of
persecution by the ruling authorities. Members of his family were executed by the
regime, and Mr Joseph himself was arrested on suspicion that he was a political
activist. Mr Joseph was interrogated and then sentenced to death.

[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 he
applied successfully for asylum and, later, residency.

[8] On 28 July 1998, Mr Joseph was convicted of the offence of loss of liberty
with duress, which I take to be the equivalent of the crime of kidnapping under the
Crimes Act 1961.' On appeal, the Danish Eastern High Court suspended the four
month prison sentence that he had received for that offence. The suspension was to
last for a period of two years, and at the expiration of that period the conviction was
to be expunged provided Mr Joseph kept out of trouble in the meantime. The
conviction and the suspended sentence no longer appear in the records held by the
Danish authorities.

[9] Mr Joseph returned to Iraq in the late 1990s, where he was again arrested and
detained in custody to await execution. With assistance from his family, however, he
was able to escape from custody and fled from Iraq. On this occasion he travelled to
New Zealand. Mr Joseph entered New Zealand using a false Danish passport, a fact
that he revealed to immigration authorities very shortly after he arrived in the
country.

[l01 Mr Joseph assumed his present name before leaving Iraq, and he has used
that name on all official documents that he has completed after arriving in New
Zealand. 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, to
change their identities in order to survive under the Saddam regime. He has also
produced an email from Iraqi Interpol to Wellington Interpol stating that his change
of name was effected legally in 2000.

[l21 On 18 April 2000, Mr Joseph applied for refugee status in New Zealand, and
he successfully attained that status on 13 June 2001. On 19 November 2001, Mr
Joseph applied for New Zealand residency, and this was also granted.

I
Crimes Act 1961, s 209

[l31 Mr Joseph applied for New Zealand citizenship on or about 29 April 2003. In
doing so he completed a detailed application form. On 26 June 2003, he received
advice that his application had been successful, and he was granted New Zealand
citizenship 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 Jacob
Abrahim 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 March
2007 that relationship produced a child, Ali Duffy-Bawi. The relationship between
Mr Joseph and MS DufTy came to an end in 2008. Since that time there have been
protracted proceedings in the Family Court regarding the contact that Mr Joseph is
able to have with his son. He is now able to have contact with his son on a regular
basis. He has been in a stable relationship with another woman since 2008.

[l51 Meanwhile, the New Zealand authorities learned of Mr Joseph's original
name and true birth date as a result of enquiries that the police made through
Interpol. These occurred after Mr Joseph had been required to provide the police
with his fingerprints following an incident that had resulted in his arrest.

[l61 In February 2006, the police laid four indictable charges against Mr Joseph
under the Crimes Act 1961, the Citizenship Act 1977 and the Passports Act 1992.
These related to Mr Joseph's failure, when completing official documents after
arriving in New Zealand, to disclose his original name and date of birth, and details
relating to the criminal offence of which he had been convicted in Denmark. Mr
Joseph ultimately pleaded guilty to the charges, and on 18 March 2008 he was
sentenced to six months' home detentiox2 He later sought to appeal against his
conviction, 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 Joseph
pursuant to s 19(1) of the Citizenship Act 1977. This advised Mr Joseph that the
Minister intended to deprive him of his New Zealand citizenship, and also advised

'R v AI-BawiDC Auckland CRI-2006-004-013465,8 March 2008
1
Al-Bawiv R [2010] NZCA 330.

him of his right to apply to this Court for a review of the sufficiency of the grounds
that the Minister intended to rely upon.

[l S] Mr Joseph then commenced this proceeding, in which he seeks a declaration
that there are insufficient grounds to make an order depriving him of his New
Zealand citizenship.

The statutory framework

[l91 The grant of New Zealand citizenship is governed by s 8 of the Act, which
relevantly 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:

(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 of
citizenship 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 Court's power of review under s 19 of the Act.
Before making an order depriving any person of New Zealand citizenship under
s 17, the Minister must first serve on that person a notice complying with the
requirements set out in s 19(1). The notice must advise the person of the fact that the
Minister 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

order, and must advise the person of his or her right to have the sufficiency of those
grounds 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 to
justify the making of the order under either s 16 or s 17, the Minister may not
thereafter, without fresh cause, make any order depriving the person of New Zealand
citizen~hi~.~

[24] Sections 19(7) and (8) provide the Court with wide powers in considering an
application for review. It may receive as evidence any statement, document,
information or matter that may assist it to deal justly with the application, whether or
not it would othenvise be admissible in proceedings before the Court. It may also
hear evidence in private, and prohibit publication of evidence where it is satisfied
that 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 upon
which the Minister intends to rely. It does not embark upon its own enquiry as to
whether other grounds also exist. It has been said that the Court bears a "heavy
responsibility"s when making a decision under s 19(2), because its determination is
final 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.

Onus of proof

[26] An application under S 19(2) does not constitute either an appeal from, or
Instead, jurisdiction under s 19(2) is
judicial review of, the Minister's d e ~ i s i o n . ~
limited to making a declaration that there are insufficient grounds to justify the
making 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 authorities
regarding 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 to
prove that there are insufficient grounds to justifying the making of the order,
although the evidential burden may shift from one party to another during the
hearing.9 In Yan v Minister oflmmigration, Hammond J considered that reference to
the onus of proof was not helpful, and that while the working onus may rest on the
plaintiff, 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 the
issue of whether or not either party bears the onus of proof. An application under s
19 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 the
order depriving the applicant of his or her citizenship. The Court must reach its own
conclusion as to the ultimate issue. It has the task of weighing the competing
arguments, and determining as an exercise of judgment whether the grounds upon
which the Minister relies are insufficient to justify an order depriving the applicant
of 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.

(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 Zealand's 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 the
notice 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

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 the
second paragraph of the notice demonstrates that one of the grounds upon which the
Minister proposed to rely was that Mr Joseph's grant of citizenship had been
acquired by mistake. That has relevance because, where the Minister relies upon the
ground of mistake, s 17(3) prohibits the Minister from making an order depriving a
person of citizenship where the deprivation of citizenship will leave the person
stateless. The same prohibition does not apply in cases where the grant has been
procured or acquired through fraud, false representation or wilful concealment of
relevant information.

[32] Mr Joseph wishes to argue that an order depriving him of New Zealand
citizenship will render him stateless. For that reason he has an obvious interest in
contending that one of the grounds upon which the Minister proposes to rely is that
of mistake.

[33] I consider that the answer to this issue lies in the last sentence of the fourth
paragraph of the notice. In that sentence the Minister states that the grounds upon
which he intends to make an order depriving Mr Joseph of his citizenship are that Mr
Joseph procured the grant, or the grant requirement, "by fraud, false representation

or by wilful concealment of relevant information". These factors relate back to the
requirement 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 as
recording the Minister's view that it was open to him to make an order depriving Mr
Joseph of his New Zealand citizenship on all four grounds. I consider, however, that
the omission of any reference to mistake in the last sentence of the fourth paragraph
was deliberate. It confirms that, although the Minister believed that he was entitled
to 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 wilful
concealment of relevant facts. As a consequence, S 17(3)(b) will not prevent the
Minister 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.12
For that reason a person should not be deprived of that status lightly. The Act
therefore restricts the circumstances in which the Minister may make an order
depriving a person of citizenship. The Minister may only take that step where the
person 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 a
substantial cause of the grant of citizenship, or satisfaction of a grant requirement.I4
It 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 1040/95,9
November 1996 at 7-8.
" Idem.

[37] Although this is not a feature of the present case, the impugned conduct does
not have to be that of the applicant for citizenship. It may be the conduct of
somebody acting on that person's behalf in relation to the application. The grounds
may therefore still be made out even if the applicant had no knowledge of the
conduct 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 Minister's power to deprive a person of citizenship reflects the
underlying principle that, in granting an application for citizenship, the Minister
relies upon the information contained in the application as constituting a full and
correct statement of the applicant's true identity and material circumstances. If that
proves not to have been the case in one or more material respects, the Minister will
have granted the application on the basis of incorrect information. As a
consequence, the original justification for the grant may be vitiated.

[40] Conduct that amounts to fraud, the making of a false representation and the
wilful concealment of relevant information are different forms of conduct that
nevertheless overlap to a significant degree. The three grounds share a common
feature. Each represents a form of conduct that is engaged in deliberately, and for
the purpose of either procuring a grant of citizenship or satisfying a grant
requirement.

16
Hao v Minister of Internal Affairs HC Auckland CIV-2009-404-005610, 7 September 2009 at [78].

[41] I take fraud in this context to mean conduct involving actual dishonesty. In
order 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 relevant
information will occur where there is a deliberate omission of information that is
likely to be relevant to the decision that the Minister is required to make.

[42] As the present case demonstrates, conduct constituting one ground may also
constitute another. By way of example, making a false representation and
deliberately concealing relevant information may also amount to fraud. The
deliberate concealment of relevant information may also result in a false
representation. Dishonesty is not, however, an essential element of making a false
representation or deliberately withholding relevant information. Those forms of
conduct may occur where the conduct falls short of being dishonest. Importantly,
however, both grounds require the applicant for citizenship, or somebody acting on
his or her behalf, to have acted deliberately.

[43] The deliberate nature of these forms of conduct distinguishes them from a
grant, or grant requirement, being procured or acquired by mistake. Mistake is a less
culpable form of conduct, because it does not involve a deliberate or intentional act
on the part of the applicant. The fact that mistake is less culpable no doubt prompted
the inclusion of s 17(3), which prohibits the Minister from depriving a person of
citizenship 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 three
separate aspects of his application for citizenship amount to fraudulent conduct, the
making of false representations andlor the wilful concealment of relevant
information. These relate to Mr Joseph's failure to provide details of his original
name, 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 to
satisfy the grant requirement that he be a person of good character, and thereby
enabled him to procure New Zealand citizenship.

[45] The relevant sections of Mr Joseph's application for citizenship, and the
information that he provided when he completed them, are as follows:

GivedFirst name(s)
Show given names from your
birth certificate, unless your John Jacob Abrahim
name has changed (example:
by marriage, or statutory
declaration
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 19/04/1980

Please list: Do you have any court convictions in New Zealand or overseas?
Offences against the law.
q Yes fist below) L3 No

AN legal action taken againsf Are YOU, or have you been involved in any legal action or
you. investigation?
Yes Oist below) El No
Investigations in which you
were a suspect. Conviction/charge or legal action Sentence Country Date

Include all cases in New
Zealand or overseas.

Continue on your own paper fyou need to.

[46] Questions have been raised as to the propriety of the circumstances in which
Mr Joseph assumed his present name. When the Court of Appeal dismissed his
appeal against conviction, it referred to Mr Joseph's present name being "entirely
fictitious" and "obtained by corrupt means fiom Iraqi officials"." The evidence in

n AI-Buwi v R, above n 3 at [15].

this proceeding does not provide any basis to justify those comments. I therefore
proceed on the basis that Mr Joseph acquired his new name validly.

[47] This does not assist Mr Joseph, however, because the application for
citizenship clearly required him to provide full details of any other name that he had
used in the past. If he had used a different name in the past, he was also required to
explain 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 of
birth because he feared that those details might alert the Iraqi authorities to his
presence in New Zealand. I find that to be an unconvincing explanation, particularly
given the fact that he had been living in New Zealand for more than three years by
the time he applied for citizenship.

[49] The application form required Mr Joseph to be completely candid regarding
his name and any changes to it. It also required him to enter his true date of birth. In
deliberately omitting to supply any details about his birth name, Mr Joseph wilfully
concealed 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 legally
change 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 enabled
the New Zealand authorities to make background checks about Mr Joseph.
Independent enquiries by the New Zealand authorities may be necessary, for
example, to verify an applicant's assertion that he or she has never been the subject
of a criminal conviction or a legal investigation overseas.18 The only way in which
the New Zealand authorities can make such enquiries is by requesting assistance
from appropriate agencies in other countries. That cannot be done unless the
authorities in New Zealand know the applicant's correct date of birth, as well as all
names that he or she has used in the past.

[51] The fact that Mr Joseph failed to disclose this information therefore
prevented the New Zealand authorities from carrying out the full range of

18
See the passage from Hao cited above at [38].

background checks that they would normally have done. In particular, it prevented
them from discovering about his offending in Denmark.

[52] I consider that the provision of this information was fundamentally important
to Mr Joseph's application for citizenship. His failure to disclose the true position
meant that the Minister granted citizenship to an applicant whose original name and
true date of birth were unknown. It also prevented the New Zealand authorities from
making background checks about him that may have called into question his
eligibility for citizenship.

[53] Mr Joseph was similarly unforthcoming about his criminal offending in
Denmark. He now explains that he believed that the Danish conviction and sentence
had been expunged. For that reason he believed that the offending in Denmark was
of no relevance to his application for citizenship.

[54] That explanation is also unconvincing, particularly given the information that
the application form required the applicant to provide. The section of the form
headed "Character" did not merely require the applicant to supply information about
previous overseas convictions. It also sought information about any legal actions or
investigations to which the applicant had been subject overseas.

[55] Even if Mr Joseph genuinely believed that his Danish conviction and
sentence had been expunged, he could not avoid disclosing the investigation and
legal proceedings that led to them being imposed. That information, too, was
important. New Zealand has an obvious interest in knowing about all legal
investigations and actions in which an applicant has been involved before coming to
this country. Such information assists the Minister in reaching a conclusion as to
whether the applicant satisfies the good character requirement.

[56] Mr Joseph made a deliberate decision to withhold the information about his
offending in Denmark. As a result, he deliberately concealed relevant information.
The Minister was required to be satisfied that Mr Joseph was a person of good
character. Any omission of previous criminal offending must be viewed seriously.

[57] The Minister proceeded on the basis that Mr Joseph satisfied the good
character requirement because he had no previous convictions, and he had never
been subject to any legal investigation or action overseas. As it later transpired, this
information was not correct. I consider that Mr Joseph's failure to provide his birth
name and true date of birth, coupled with his failure to provide any details regarding
his offending in Denmark, enabled him to satisfy the grant requirement that an
applicant be of good character. It was therefore also a substantial cause of the grant
of citizenship.

[58] The only remaining issue is whether Mr Joseph's conduct also amounted to
fraud.

[59] I have some hesitation about making a finding of fraud without having seen
and heard Mr Joseph give evidence. In the end, however, I cannot escape the
conclusion that a deliberate failure to divulge such important information amounted
to dishonesty. Mr Joseph knew the importance of the information that the form
requested. The details that he failed to provide effectively meant that the New
Zealand authorities had no means of checking whether he was a person of good
character. In those circumstances I find that the grant of citizenship was also
procured by fraud.

(c) To what extent are New Zealand's obligations under international
instruments relevant in the present context?

[60] Counsel for Mr Joseph contends that New Zealand's obligations under two
international instruments are relevant in the present context. First, he submits that
any decision by the Minister to deprive a person of citizenship must have regard to
New Zealand's obligations under the United Nations Convention on the Reduction of
Statelessness.'*

[61] The answer to this submission lies in the fact that, as previously noted,I9
s 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 13
December 1975). New Zealand ratified the Convention on 20 September 2006.
l9 ~t [43].

where it has been acquired by mistake, and where the deprivation of citizenship
would render the person stateless. Parliament has therefore determined how New
Zealand will give effect to its international obligations in relation to statelessness in
this context. It has done that by limiting the Minister's power to order deprivation of
citizenship in cases where the person's citizenship has been acquired by mistake. In
such cases the Minister has no power to make an order where the effect of the order
would be to render the person stateless.20 In all other cases, however, the Minister
retains the power to order depriving the person of citizenship even though the order
will have that effect. The fact that Parliament has given such close attention to the
issue of statelessness in the Act means that the Minister and the Court cannot take
that issue into account in cases where citizenship was procured otherwise than by
mistake.

[62] Secondly, counsel for Mr Joseph contends that New Zealand's international
obligations in relation to children are relevant. He submits that, as the Courts have
recognised in cases under the Immigration Act 1987;' the Citizenship Act 1977 must
be interpreted having regard to New Zealand's international obligations under the
United Nations Convention on the Rights of the Child ("uNcRoC").~~

[63] I do not accept that submission, principally because any decision that the
Minister might make in relation to Mr Joseph's citizenship will not directly affect the
citizenship or welfare of Mr Joseph's son. Mr Joseph's son will remain a New
Zealand citizen regardless of any decision that the Minister might make in relation to
Mr Joseph's citizenship. His son will therefore be entitled to remain in New Zealand
and enjoy all the rights, privileges and responsibilities of New Zealand citizenship.

[64] Mr Joseph's real concern relates to the likely consequences of an order
depriving him of New Zealand citizenship. He fears, with some justification, that
this will prompt a sequence of events that will ultimately result in him being
deported from New Zealand. Deportation would prevent him from having any
further contact with his young son.

20
See for example Ye v Minister oflmmigration [2010] 1 NZLR 104 (SC) at [24].
21
2%nited Nations Convention on the Rights of the Child 1989 UNT 1577 (opened for signature 20
November 1989, entered into force 2 September 1990).

[65] I understand and appreciate Mr Joseph's concerns. They are real, and they
are understandably very important to him. The Minister's decision regarding Mr
Joseph's citizenship will not, however, lead automatically andtor inevitably to Mr
Joseph's deportation. Any decision to deport Mr Joseph would be made by the
immigration authorities, who are bound to apply the provisions of the Immigration
Act 2009.

[66] Mr Joseph would have the right to appeal to the Immigration and Protection
Tribunal on humanitarian grounds against any deportation order.23 If that was
unsuccessful, he could raise the likely effect of deportation on his son with any
immigration officer. The immigration officer would then be obliged to consider
whether to consider cancelling the deportation order in light of New Zealand's
international obligations.24 I consider those to be the appropriate points at which Mr
Joseph's concerns regarding loss of contact with his son should be addressed. It
would be premature for them to assume relevance at this stage.

[67] These conclusions lead me to consider the ultimate issue, which is whether
there are insufficient grounds to justify an order depriving Mr Joseph of his New
Zealand citizenship.

Are there insufficient grounds to justify an order depriving Mr Joseph of his
citizenship?

[68] Several factors are relevant in this context. The first of these is the nature of
the conduct forming the grounds upon which the Minister relies.

[69] My earlier conclusions are relevant in this context. Mr Joseph elected not to
disclose matters that he plainly knew to be relevant to the Minister's decision. This
led directly, in my view, to him satisfying the good character requirement and this in
turn was a substantial factor in the Minister's decision to grant him citizenship. The
effect of the non-disclosure was therefore significant.

23
Immigration Act 2009, s 206.
24
Immigration Act 2009, s 177(2).

1701 Secondly, Mr Joseph's non-disclosure of these matters was not an isolated
incident. He had obtained refugee status under his new name and using a false date
of birth. He had also obtained residency by the same means. The true position did
not come to light until several years after he was granted citizenship. Even then he
did not volunteer the information. It only emerged after the police sent his
fingerprints overseas for checking by Interpol.

[71] Moreover, Mr Joseph's status as a refugee has now been cancelled on the
ground that he failed to disclose a material fact when he applied for that status. The
Refugee 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 enjoyed
residency status in Denmark when he applied for refugee status in New Zealand. Mr
Joseph conceded at the hearing before the Authority that he had procured his refugee
status by fraud, by providing false or misleading information andfor by wilfully
concealing relevant inf~rmation.~' Authority described his failure to disclose the
The
fact of his Danish residency as "deceit".28 Mr Joseph sought judicial review of the
Authority's decision, but his application was unsu~cessful.~~

[72] The nature and gravity of the offending in Denmark also needs to be taken
into account. This occurred on 20 June 1998, after Mr Joseph became involved in a
dispute about a debt owed to his flatmate by the complainant. Mr Joseph and an
associate went to the complainant's shop, where they used a pretext to persuade the
complainant to get into the back seat of their car. They then drove away from the
shop with the complainant in the back seat. During the journey, which lasted for five
to ten minutes, Mr Joseph and his associate took turns sitting in the back seat of the
vehicle and striking the complainant. Mr Joseph also threatened to kill him.

[73] The car eventually stopped in a deserted industrial area. Both men then
inflicted further violence on the complainant. This took the form of physical blows
and threats to the complainant's life. This prompted the complainant to sign an
admission of debt in favour of Mr Joseph's flatmate. The admission provided for the

26 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.

complainant to hand his car over to Mr Joseph's flatmate, and also to pay his
flatmate 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 entire
incident took between 30 minutes and an hour.

[74] On 28 July 1998, Mr Joseph and his associate each received sentences of four
months' imprisonment for their offending, whilst Mr Joseph's flatmate received a
suspended sentence of three months' imprisonment.

[75] As noted earlier, the Eastern High Court suspended Mr Joseph's sentence of
imprisonment when it reviewed his case on appeal on 9 February 1999. Mr Joseph
had by that stage spent approximately one month in custody and in isolation. The
Court held that it was not necessary for him to complete his sentence. The
suspension of Mr Joseph's sentence was conditional, however, on Mr Joseph being
on probation for two years, and not committing a punishable offence during that
period.

[76] Mr Joseph now describes his offending in Denmark as being "minor", but
that description significantly understates its gravity. The offending involved the
abduction and detention of the complainant against his will for a reasonably
significant period. It also involved the application of threatened and actual violence
to the complainant's person on more than one occasion. Furthermore, it resulted in
the complainant signing the admission of debt against his will.

[77] I accept, however, that the Eastem High Court must have viewed the
offending as being at the lower end of the scale for offending of that type. That can
be the only explanation for its conclusion that Mr Joseph should not be required to
complete 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 when
Mr Joseph was just 22 years of age. Having said that, it occurred just two years
before Mr Joseph arrived in New Zealand, and five years prior to the date upon
which he applied for citizenship. Mr Joseph was still serving the term of probation
imposed by the Eastern High Court when he arrived in this country. That did not end

until 9 February 2001. It is therefore very likely that the Danish offending, and the
consequences of it, would have been sufficiently recent in 2003 to persuade the
-Minister that Mr Joseph could not satisfy the good character requirement. It remains
a very relevant factor today.

[79] Counsel for Mr Joseph points out that, other than the charges that Mr Joseph
has 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 entered
guilty pleas in this country were serious. They were laid indictably, and alleged
fraudulent conduct in respect of his applications for refugee status, residency,
citizenship and the issue of a New Zealand passport. The seriousness of the charges
is reflected in the fact that the Judge adopted a starting point of three years'
imprisonment. He agreed with the Crown that offending of this type had "severe
consequences for the integrity and reputation of New Zealand's international border
security".30

[80] Counsel for Mr Joseph submits that Mr Joseph has now paid the price for his
unlawful conduct, and that it is not necessary to punish him further by depriving him
of his citizenship. I agree that Mr Joseph has now paid the price for his actions, in
the sense that he has served the sanctions imposed upon him in relation to those
actions. That does not answer the question, however, of whether he should retain a
status that he effectively procured by dishonest conduct.

[Sl] Finally, counsel for Mr Joseph points out that, to the extent that Mr Joseph's
health has permitted, he has proven to be an industrious worker and has made a
positive contribution to the community. He now suffers from very serious physical
and mental health issues, and this detracts significantly from his ability to lead a
normal and productive life.

[S21 That submission has some force, but it does not persuade me that insufficient
grounds exist to justify the removal of Mr Joseph's citizenship. The manner in
which Mr Joseph procured his citizenship counts significantly against him, as does
the conduct that led to his convictions in both New Zealand and Denmark. I take the

'O R v AI-Bawi, above n 2 at [9].

view that those factors provide ample grounds to justify the Minister making an
order 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 filed
addressing that issue.

Solicitors: Blomkamp Cox, Auckland
Crown Law, Wellington
Counsel:
N W Ingram QC, Auckland

Joseph v minister of internal affairs

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