Taylor v Minister of Internal Affairs [2016] NZHC 868 (3 May 2016)

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IN THE MATTER	of an application under section 19(2) of the Citizenship Act 1977
AND
IN THE MATTER	of an application for judicial review under the Judicature Amendment Act 1972
BETWEEN	ROBERT TAYLOR Plaintiff
AND	MINISTER OF INTERNAL AFFAIRS Defendant

Hearing:	12 October 2015
Counsel:	R E Harrison QC and C Mills for Plaintiff J Gorman and H Baillie for Defendant
_Judgment:	_{3 May 2016}

[1] In April 2009 Dr Robert Taylor, the plaintiff, acquired New Zealand citizenship by grant pursuant to the Citizenship Act 1977 (the Act). In March 2015

Dr Taylor was formally notified that the Minister of Internal Affairs (the Minister) intended to make an order depriving him of his citizenship on the ground that it was procured by mistake.

(a) seeks a declaration pursuant to s 19(2) of the Act that there are insufficient grounds to justify making an order depriving him of citizenship; and

[3] It is accepted that if the application under s 19(2) is successful it will not be necessary for the Court to determine the application for judicial review.

[4] For the reasons that follow I decline to make a declaration under s 19(2). The

[5] Dr Taylor is a consultant radiologist residing in Australia under a special category visa that is available to New Zealand citizens. He previously resided in the United Stated of America.

[6] In May 2004 Dr Taylor was arrested by the Garland Police Department, Texas and charged with “criminal solicitation of a minor to commit sexual assault of a child”. He was released after posting a $50,000 bail bond with Dallas County. Thereafter he did not appear in any court in relation to the charge.

[7] In January 2005 Dr Taylor moved to New Zealand to pursue a significant job opportunity. In 2007 he applied for citizenship. Dr Taylor did not disclose in his

application the fact of his arrest in 2004 or that he had been involved in the legal investigation. Nor did he disclose the fact of his travel to the United States in 2006.

[8] Dr Taylor believed the charge against him had been dropped. That belief was bolstered by the fact that Dr Taylor returned to Texas in 2006 without being apprehended at the United States border or elsewhere. Dr Taylor says he openly travelled to the United States in 2006, a trip he would not have made if he feared arrest and had fled the country as has been implied.

[9] As it happened Dr Taylor apparently had been due to appear before a court in Texas on 1 May 2006. He did not appear and it seems a warrant was issued for his arrest.¹

[10] In February 2014 an informant disclosed to the Department of Internal Affairs (the Department) that Dr Taylor had been arrested in the United States but left before the matter reached the courts and he remained a fugitive.

[11] By letter dated 12 June 2014 the Department formally advised Dr Taylor that it intended to request the Minister to make an order depriving him of citizenship. The letter referred to Dr Taylor’s failure to declare certain character information regarding his alleged offending in the United States. The Department advised that it considered Dr Taylor’s citizenship –

was procured by fraud, false representation, or wilful concealment of relevant information rather than by mistake.

[12] Through the remainder of 2014 the Department and Dr Taylor, through his legal advisers, corresponded about the proposed deprivation of citizenship and the

¹I say “it seems” because the evidence before this Court regarding the status of the warrant is imperfect. On the one hand Dr Taylor has exhibited to his affidavit a copy of a document headed “Dallas County Felony and Misdemeanor Courts Case Information”. This “Judicial Information” sheet records next to “Warrant Status” the code “C” purportedly denoting cancellation of the warrant. On the other hand the Departmental Investigator deposes to having visited the Dallas County Felony and Misdemeanor Courts website where there is a prominent disclaimer to the effect that information on the site is not for official use and is provided with no warranty as to content including its accuracy or reliability. The Department Investigator sought and received through diplomatic channels confirmation that there is an active warrant for Dr Taylor’s arrest and extradition. He has exhibited a copy of the arrest warrant which is dated June 2006.

Department’s contention that he had concealed detrimental information so he could

[13] On 19 March 2015 a Notice of Intention to Deprive was served on Dr Taylor’s legal advisers. The ground for deprivation was that Dr Taylor procured the grant of citizenship by mistake.

[14] This ground of “mistake” was news to Dr Taylor. The proposed ground for deprivation of citizenship advised in the Departmental letter dated 12 June 2014 was that his “citizenship was procured by fraud, false representation, or wilful concealment of relevant information rather than by mistake”.²It was to the ground notified in the letter that Dr Taylor’s subsequent detailed submission to the Department had been directed.

[15] On 14 April 2015 Dr Taylor filed this proceeding. Two claims are pleaded. They each raise different issues for determination.

(a) The central issue raised by the application for a declaration (the s 19 application) is whether the ground of mistake relied on by the Minister is made out.

(b) The central issue raised by the application for judicial review (the judicial review claim) is whether the Minister’s decision to issue the Notice of Intention to Deprive was flawed.

[16] New Zealand citizenship may be acquired by descent under s 7 of the Act or by grant under s 8. Dr Taylor acquired citizenship by grant.

[17] Section 8 empowers the Minister to authorise the grant of citizenship to any person who satisfies the requirements of s 8. Many of the requirements may be

_{waived. The Minister may waive, for example, the requirement that an
applicant for}

²Letter from Department of Internal Affairs dated 12 June 2014 (emphasis added).

citizenship has sufficient knowledge of the English language.³One of the pre- conditions for the grant of citizenship that cannot be waived is that the applicant “is of good character”.⁴The good character precondition is relevant to this proceeding.

[18] Under ss 16 and 17 of the Act the Minister may deprive a person of his or her citizenship if the Minister is satisfied of the existence of certain grounds. In Dr Taylor’s case the Minister relied on s 17 which provides:

(1) This section applies to a New Zealand citizen who has acquired that citizenship—

(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—

[19] The Minister’s power to deprive a person of citizenship is subject to the

(1) Before making an order under section 16 or section 17 depriving any person of New Zealand citizenship, the Minister shall serve on that person a notice—

(b) citing the section of this Act under which he considers that he has grounds to make such an order; and

(d) advising the person of his right to have the matter reviewed by the Court in accordance with the succeeding provisions of this section.

(2) Every person upon whom a notice is served under subsection (1) may, within 28 days after it is served 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 depriving the applicant of New Zealand citizenship; and the court may make or refuse to make such a declaration accordingly.

(4) Where the court makes such a declaration, the Minister shall not thereafter, without fresh cause, make an order under section 16 or section 17 depriving the applicant of New Zealand citizenship.

(7) When hearing any application under this section the court may receive as evidence any statement, document, information, or matter that, in the opinion of the court, may assist it to deal justly with the application before it, whether or not the same would be otherwise admissible in proceedings before the court.

(8) Where the court is satisfied that it is desirable to do so by reason of the confidential nature of any evidence submitted or to be submitted to it in respect of any application under this section, the court may, of its own motion or on the application of any party to the proceedings,—

(b) make an order prohibiting the publication of any report or account of the whole or any part of any such evidence (whether heard or taken in public or private).

[20] There being no right of appeal from a decision of the High Court on an application under s 19(2) the Court, it has been observed, bears a “heavy

responsibility”⁵when considering such applications because its decision is final.⁶

[21] The parties have differing views about the nature of the Court’s role under

[22] For the plaintiff Dr Harrison QC submitted that the Court’s focus on an application under s 19(2) is on the sufficiency of the grounds advanced by the Minister to justify the making of an order depriving an applicant of citizenship. The grounds in question must be those specified in the Minister’s notice of intention.

[23] On behalf of the Minister Ms Gorman submitted that the Court is not restricted to considering the grounds relied on by the Minister. The Court has a de novo jurisdiction independent of the Minister’s decision and authorities that have held otherwise are wrongly decided.

[24] In my view an application under s 19 confines the Court to considering the sufficiency of the grounds relied upon by the Minister. Those grounds must be the same grounds notified to a person pursuant to s 19(1)(c). This meaning is evident in light of the text and purpose of s 19.

(a) The act of serving a notice specifying the grounds on which the Minister intends to make an order⁷gives rise to the person’s right to apply to have “the matter” reviewed by the Court in accordance with s 19.⁸

(b) Thus when the Court is deciding whether it will make or refuse to make a declaration that the grounds are insufficient to justify the

⁵Yan v Minister of Internal Affairs [1997] 3 NZLR 450 at 459; Joseph v Minister of Internal

Minister depriving the person of citizenship, the grounds under review are the grounds in the notice; the grounds on which the Minister’s intended order is to be made.

(c) The consequence of the Court assuming a jurisdiction to consider grounds beyond those relied on by the Minister and notified to the person would be substantially to negate the procedural requirements of s 19 and the protection it affords to a citizen.

(i) If new grounds were proposed by the Court or, as happened in this case, by the Minister in the course of the hearing the procedural protections in s 19(1) would be avoided.

(ii) If the procedural protections requiring prior notification of grounds to the citizen are avoided, the rights of the citizen to take steps consequent upon notice are negated.

(d) The careful regulation of citizenship achieved by the Act would be potentially undermined if the High Court exercised a jurisdiction above and beyond the statutory jurisdiction conferred on the Minister.

[25] Ms Gorman emphasised the broad power which s 19(7) confers on the Court to receive “any evidence”. I accept the rules of evidence are relaxed for applications under s 19. But while s 19(7) is drawn in broad terms its effect does not invite or permit the Court to embark on its own inquiry as to the existence of grounds beyond those specified in the Minister’s notice.

[26] The Crown relies on Heng v Minister of Internal Affairs in support of its submission that the Court has a de novo jurisdiction independent of the Minister’s decision and is not restricted to considering the grounds for deprivation relied on by the Minister.⁹But in Heng Salmon J did not decide that the Court’s broad power to receive otherwise inadmissible evidence constituted a power to “consider new

_{grounds for deprivation that were not available to the Minister on the
evidence}

⁹Heng v Minister of Internal Affairs HC Auckland M616/95, 24 April 1996 at 5–6.

before him or her”.¹⁰The Court’s power to receive wide-ranging evidence is not to be confused with a wide-ranging jurisdiction. The Court’s independence of the Minister does not equate to a jurisdiction to identify grounds for deprivation of citizenship that were neither in the Minister’s contemplation, nor notified to the citizen.

[27] It is untenable to construe a provision such as s 19 which is oriented to the procedural benefit and protection of citizens at risk of losing their citizenship as enabling the Court to make an assessment of different or new grounds not previously notified to the citizen.

[28] The grounds for deprivation of citizenship which the Court will consider must be those specified by the Minister in the notice served under s 19(1) and not any other or further grounds which have occurred to the Minister or his legal advisers in the meantime. Section 19 effectively directs the Court to approach the sufficiency of the grounds in the Minister’s notice “in the terms in which it is couched”.¹¹Nor may the Court embark on its own inquiry as to whether grounds

[29] As Dr Harrison submitted s 19(2) is silent on the standard or intensity of judicial scrutiny of grounds justifying deprivation of citizenship.

[30] An application under s 19(2) is neither an appeal from the Minister nor a judicial review of a decision to deprive a person of citizenship. The Minister cannot consider or take that step until the Court has determined the s 19(7) application.¹³

[31] Section 19 constrains to a high degree the scope of the Court’s considerations

¹¹_{Hao v Minister of Internal Affairs HC Auckland
CIV-2009-404-5610, 7 September 2009 at [89].}

(a) The Court is required to assess a single issue: the sufficiency of the grounds relied on by the Minister to justify the deprivation of citizenship which the Minister is proposing to order.

(b) A declaration that there are insufficient grounds to justify the making of an order is either made or refused.¹⁴The High Court has no authority to refer the matter back to the Minister for reconsideration nor, if the grounds are determined to be insufficient, does the Court have a discretion to decline to grant a declaration.

[32] In these fundamental respects the legislature has mandated that the Court’s approach to a s 19 application is to be unlike the Court’s approach to an application for judicial review. Section 19 is carefully calibrated to achieve that effect. Under s 19 the High Court exercises the limited statutory jurisdiction which s 19 confers. Section 19 provides no scope for the High Court to exercise its wider supervisory jurisdiction.

[33] And so a citizen wishing to challenge a decision to deprive her or him of citizenship has three options:

[34] What is not available is the determination of a s 19(2) application as though it were an application for judicial review. While judicial review is the common law means by which courts hold officials to account¹⁵that is not the purpose of s 19(2) whose thrust is a right of review of limited scope and with limited (although

_{potentially valuable) outcomes. Section 19 sits alongside the
availability of judicial}

¹⁵Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012]

review but it does not accommodate a judicial review approach in the course of the hearing.

[35] For these reasons the grounds of review pleaded in respect of the s 19 application (breach of natural justice and reviewable error) fall to be considered and determined under the judicial review head of challenge.

First claim – application for declaration that Ministers grounds are insufficient

20.4 Are you, or have you been involved in any other legal action against you, review or investigation in New Zealand or overseas by:

Customs Yes  No Immigration Services Yes  No Land Transport New Zealand (Transport Authorities) Yes  No The Department of Internal Affairs Yes  No Passport Issuing Authority Yes  No Ministry of Defence (Military) Yes  No Work and Income, Ministry of Social Development Yes  No Insolvency & Trustee Service Yes  No Companies Office Yes  No Inland Revenue Department Yes  No Ministry of Justice Yes  No Other  Yes No

[37] Section 21 stated: “If there is anything else we should know that may affect your application, please explain below and provide supporting documentation.” Dr Taylor did not disclose any information.

[38] Section 31 of the application was headed “Statutory Declaration”. By making the declaration Dr Taylor acknowledged that he understood the warning that followed:

Warning: this form is a statutory declaration. Do not give any false information or conceal any facts. This is an offence.

[39] citizen	The ship h (a)	Minister’s grounds for making an order depriving Dr Taylor of ave changed over time: The letter dated 12 June 2014 formally advising Dr Taylor of the
		Department’s intention to recommend deprivation of citizenship relied on fraud, false representation, or wilful concealment of relevant
		information. The letter expressly disavowed mistake.
	(b)	The Minister’s Notice of Intention, served on 17 March 2015 but dated
		27 January 2015, stated that citizenship had been procured by mistake.
	(c)	As at October 2015, during the course of this proceeding, the Minister’s
		position had changed once more. The Court was invited to address a ground of wilful concealment.

[40] In light of my conclusions about the nature and scope of the Court’s “review”¹⁶function under s 19(2) I propose to consider only the sufficiency of the grounds relied on by the Minister as notified to Dr Taylor in the notice, that is, (b) above: that Dr Taylor’s citizenship was procured by mistake.

[41] Under cover of a letter dated 17 March 2015 the Ministerial notice was served on Dr Taylor’s solicitor. The notice itself was signed by the Minister and dated 27 January 2015. (I discuss the significance of the discrepancy in the dates when dealing with the judicial review claim.)

I, Peter Dunne, Minister of Internal 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:

At the time you were granted New Zealand citizenship, the Department of Internal Affairs and the then Minister of Internal Affairs were not aware that you were charged with an offence of “Criminal Solicitation of a Minor to Commit Sexual Assault of a Child” in the United States of America, and were also not aware that you had an outstanding warrant for your arrest in the United States of America. You did not disclose this information to the Department, and you explained that this was due to your belief that the charge had been dropped.

Had this information been known to the Minister at the time, it is likely that your application would have been declined as you would not have clearly met the requirements for “good character” and “presence in New Zealand”. Due to this, I intend to make an order depriving you of your New Zealand citizenship on the grounds that the grant or a grant requirement was procured by mistake.

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. 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 Act 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.

[43] Three key pieces of information were advised in the Notice. (a) Dr Taylor’s citizenship had been procured by mistake.

(b) The Minister intended to deprive him of citizenship on the ground the grant of citizenship was procured by mistake.

(c) Had the charge and outstanding warrant for arrest been known to the Minister the application would likely have been declined because Dr Taylor would not have clearly met the requirements for “good character” and presence in New Zealand.

[44] The parties differ as to the nature of the mistake that is required to constitute a ground for deprivation of citizenship under s 17(2).

[45] Dr Harrison submits that the mistake contemplated by s 17 is necessarily that of the administrative decision-maker. Alternatively, the express language of the provision necessarily excludes certain types of mistake such as innocent failure to provide correct information or innocent provision of incorrect or incomplete information.

[46] Dr Harrison’s submission is based on the express wording of s 17(2) and the second disjunctive “or by” separating the ground of mistake from the first three grounds which require deliberate conduct.

... the Minister may ... deprive a New Zealand citizen ... 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.

[48] On Dr Harrison’s analysis having regard to this “explicit and obviously intended disjuncture” the first three grounds in s 17(2) address applicant conduct while the final ground addresses ministerial or departmental mistake, not an applicant’s mistake.

[49] The Minister’s position, reflected in the written submissions of Ms Gorman, is that a mistake can be a mistake of the applicant but need not necessarily be the applicant’s. It may, for example, involve the conduct of a third party acting on the applicant’s behalf.

That a mistake can be an applicant’s mistake is, in the Minister’s submission, such an obvious proposition that it has not received any direct attention from the previous authorities and rather is clear by implication.

[50] Of critical importance to an application for citizenship is the integrity and accuracy of the information supplied in, and in support of, the application. As Randerson J observed in Wang v Minister of Internal Affairs¹⁷

It is plainly important to the integrity of the process that the Minster should be able to rely on the validity of documents produced in support of such an application and the accuracy or otherwise of statements or representations contained in the application...

[51] If, following the grant of citizenship, the Minister discovers information which, had it been known at the time would have disentitled the applicant to the grant of citizenship, the Minister may have grounds to deprive the person of citizenship.

[52] In this limited context the reasons (i.e. fraud, false representation etc) for non-disclosure have less significance than the quality of the information itself or the materiality of the mistake to the procurement of the grant of citizenship. Lang J’s observation in Joseph v Minister of Internal Affairs is on point:¹⁸

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.

[53] Unarguably “mistake” connotes less culpability than “fraud”, “false representation” or wilful concealment” but culpability is relevant only to the consequences of depriving a person of citizenship rather than to the grounds of deprivation.

“mistake” as in a different category to the first three grounds in s 17(2). Section

(3) The Minster may not deprive a person of New Zealand citizenship under subsection (2) if –

[55] Dr Harrison referred to an extract from a November 2003 report of the Foreign Affairs, Defence and Trade Committee to the House of Representative, “International Treaty Examination of the 1961 Convention on the Reduction of Statelessness” which in turn referred to the meaning of “mistake”. The advice given to the Committee was apparently to the effect that “mistake” meant an administrative error on the part of the Citizenship Office.

[56] Ms Gorman advised the Court that the Crown could say nothing about the “advice” or its source despite extensive inquiries being made including by the Ministry of Foreign Affairs and Trade into its archives. I am not hindered by the fact that the provenance of the “advice” is unknown. I am not assisted by the Report. Even taking a permissive approach to referencing extrinsic materials to assist in the construction of s 17 the report is of doubtful relevance.

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.

[58] Except in that limited circumstance, it is the information that comes to light that matters and not who concealed it or why it was concealed. Dishonesty is not an essential element in making a false representation or deliberately withholding relevant information.²⁰Nor need the fraud, false representation, wilful concealment or mistake be that of a grantee:²¹

It is sufficient if those grounds are made out, even if the plaintiff had no knowledge of them and was an innocent party.

[59] There is an established line of authority to this effect.²²These cases establish that the act or mistake need not be an intentional act or even the act of the grantee. The outcome in these decisions is unsurprising in light of the policy rationale underpinning the statutory provisions. The essence of entitlement to citizenship by grant is that the Minister is satisfied the applicant meets the requirements of s 8(2). It would be a nonsense if a person who was subsequently found to be disentitled to citizenship could say of the mistake or wilful concealment or other ground by which grant of citizenship was wrongly procured “but the mistake was not mine”.

[60] When Dr Taylor completed the application for citizenship he answered “No” to the question whether he had ever been involved in any other legal action against him, review or investigation in New Zealand or overseas by the Police. Dr Taylor turned his mind to a dowry case involving his ex-in-laws in India but failed to mention his arrest and charge by the Garland Police Department in May 2004. The

_{warning that it was an offence to conceal any information or facts would
have}

²²For example: Heng v Minister of Internal Affairs HC Auckland M 616/95, 24 April 1996 at 12 –

adopting the approach taken in cases concerning revocation of residence, it would be wrong as a matter of policy for a person to be able to claim citizenship on the basis of fraudulent documents just because they had been innocent of the fraud; Rajan v Minister of Internal Affairs HC Auckland M 1040/95, 5 November 1996 at 8 – procurement of residency or citizenship by fraud did not require the involvement, wilful or not, by the grantee of residence or citizenship; Yan v Minister of Internal Affairs [1997] 3 NZLR 450.

suggested to a prudent applicant for citizenship the obligation to disclose the fact of

the arrest in 2004 regardless of the outcome or the applicant’s beliefs in that regard.

[61] Nevertheless Dr Taylor’s position was that although he was arrested his lawyer at the time assured him that he believed Dr Taylor had been arrested in error and the charges against him would be dropped. Not hearing anything further Dr Taylor believed the matter was closed and the charges were dropped. There is a degree of support for this narrative from that lawyer who provided a letter to the effect that he always felt the case was a “tragedy”. Further Dr Taylor has travelled to and departed from the United States without impediment bolstering his belief that there was no outstanding charge. Dr Taylor maintained he was never informed he was due to appear in Court and that there was a current warrant.

[62] Following its investigation of Dr Taylor’s explanation the Department itself considered Dr Taylor’s explanation for his failure to declare the charge and warrant in his citizenship application to be “plausible”. There was insufficient evidence that Dr Taylor deliberately concealed the information and the Minister was so advised in a briefing paper dated 14 January 2015. That paper recommended deprivation of citizenship on the ground of mistake. Specifically, the Department did “not recommend you deprive Dr Taylor of his citizenship on the alternative grounds of

fraud, false representation, or wilful concealment of relevant information”.²³

[63] I am satisfied of the sufficiency of the Minister’s grounds to justify making an order under s 17. Undoubtedly, the fact of the arrest and charge in 2004 was material to Dr Taylor’s application for citizenship. The nature of the charge “criminal solicitation of a minor to commit sexual assault of a child” would go to the heart of the “good character” requirement in s 8(2)(c). The information was directly relevant to the requirements for citizenship and the failure to refer to it was material to procuring the grant of citizenship. Had the Minister been on notice it is likely the

“application would have been declined”.²⁴To this extent citizenship was procured

[65] That, however, is not the end of the matter. I turn now to the judicial review ground of challenge.

[66] The claim under this head of challenge is that in his exercise of statutory power under s 19(1) of the Act to set in train a process towards deprivation of citizenship the Minister erred in law and acted unfairly or in breach of natural justice.

[67] The error of law is said to be in the Minister’s reliance on the ground of

[68] I do not need to discuss further the nature of the mistake that s 17(2) contemplates or whose mistake it must be. With respect to the first claim I have concluded that:

(a) It is not necessary to ascribe to the plaintiff personal responsibility for any of the grounds for deprivation in order for any of the grounds to be made out. The fraud, false representation, wilful concealment or mistake may be that of a grantee or that of any third party. And;

(b) The Minister was justified in his conclusion that a grant requirement or the grant of citizenship had been procured by mistake.

[69] Accordingly, the Minister did not err in law when he relied on the ground of mistake as justifying his intended order to deprive Dr Taylor of citizenship. The plaintiff has not made out this ground of review.

[70] In written submissions on behalf of the Minister it was accepted that there were procedural flaws in the process leading up to his Notice of Intention to Deprive Dr Taylor of his citizenship. But the Minister submits that these flaws were not material and even if they were the Court should not exercise its discretion to grant relief because of the sufficiency of grounds for deprivation.

[71] Ms Gorman’s concession of procedural flaws is responsible. Given the nature of the process in this case, the concession was also inevitable.

[72] I deal in turn with the three key events relevant to the quality of the “hearing”

[73] The first key event was the Department’s letter of 12 June 2014 advising Dr Taylor that it intended to request that the Minister make an order depriving him of New Zealand citizenship.²⁵The letter referred to the information in Dr Taylor’s application and the fact he had turned his mind to and declared a character concern relating to an Indian court case that he had been involved in yet he did not declare any other character issues.

(a) From the date he lodged his application on 24 December 2007 until his attendance at the citizenship ceremony on 27 May 2009 Dr Taylor

²⁵There were earlier communications during May 2014 when the Department first advised Dr Taylor of the detrimental information it had received and its subsequent response to an Official Information Act request. Nothing turns on these communications.

(b) This information was concealed so Dr Taylor could clearly fulfil the good character requirement. Had the Minister known this at the time Dr Taylor’s application was considered it is likely he would have declined to grant citizenship. The Department’s view was that the citizenship was procured by fraud, false representation, or wilful concealment of relevant information rather than by mistake.

[75] Dr Taylor was invited to respond and did so. His response was to specifically deny the grounds of fraud, false representation and wilful concealment.

[76] There were further communications between the Department and Dr Taylor throughout the remainder of 2014 but the point about this first key event is that a statutory ground was notified to Dr Taylor (as is required by s 19(1)(c)) and it was to the notified ground that Dr Taylor’s response was directed.

[77] The second key event was the briefing paper to the Minister dated 14 January

2015 recommending the Minister’s agreement to deprivation of Dr Taylor’s citizenship and enclosing for the Minister’s signature the Notice of Intention to Deprive. The Minister signed his agreement to the Department’s recommendations on 27 January 2015. The Minister also signed the Notice of Intention to Deprive. That too was dated 27 January 2015. The ground of proposed deprivation was not the ground notified to Dr Taylor but “mistake”.

[78] Also on 27 January 2015 the Departmental Investigator emailed Dr Taylor’s

I have been informed that the Minister of Internal Affairs is currently actively considering depriving Mr Taylor’s citizenship on the ground that the grant of citizenship or a grant requirement was procured by mistake. The Minister is not currently considering depriving Mr Taylor’s citizenship on fraud-related grounds, but I understand he may do so in the future if the evidence available appears to warrant it.

As the matter is now under active consideration by the Minister, I would request you provide any further information urgently.

My apologies for the tight time frame for you and your client to respond on this matter.

[79] Dr Taylor’s lawyer responded fully on 2 February 2015. As to the possibility of deprivation on the ground of mistake the relevant part of the response read:

We further refer to your email of 27 January 2015 in which you have informed that the Minister is now considering revoking our client’s citizenship on the grounds of mistake. Such information is altogether new and surprising to both us and our client as the Department has never previously informed that consideration of such grounds was being undertaken. Your letter of 12 June 2014 expressly provides that the department did not consider that our client’s citizenship was procured by mistake.

Given the significance of these new allegations and the Department’s change of position, we formally request, under section 12(1) of the Official Information Act 1982, that you provide us with information illustrating the grounds upon which the Minister is considering revoking our client’s citizenship due to mistake. Please note that our request includes, but is not limited to, all correspondence, file notes, reports and any other documentation.

[80] On 4 February 2015 the Departmental Investigator responded to the following effect:

(b) All information that had been provided to the Department had been taken into consideration;

(d) The Minister had signed a Notice of Intention to Deprive based on the ground that Dr Taylor’s New Zealand citizenship or a grant requirement was procured by mistake;

[81] This sequence of events reveals not just a flaw in the process but a fundamental denial of Dr Taylor’s entitlement to a fair opportunity to respond to the particular ground the Minister proposed to rely on in depriving Dr Taylor of citizenship.

[82] First, the advice to Dr Taylor on 27 January 2015 that the Minister “is currently actively considering” depriving Dr Taylor of citizenship is difficult to reconcile with the fact that on 27 January 2015 the Minister signed his agreement to the Department’s recommendation as well as the Notice of Intention to Deprive.

On 27 January when I wrote this letter I was not aware that the Minister had already made a decision on Dr Taylor’s file. That is why my letter did not refer to the Notice of Intention to Deprive having already been signed. The point of my letter was to give Dr Taylor the opportunity to provide any further information he wanted to. If that further information had been received before the Minister made his decision I would have ensured it was provided to the Minister to consider.

[84] Even accepting the explanation it could provide little comfort to Dr Taylor nor a great deal of confidence in the process. On the face of the documents signed by the Minister on 27 January 2015 and from the affidavit evidence it is apparent that the provision of any further information from Dr Taylor would be subsequent to the Minister’s decision because that decision had already been taken.

[85] Third, the ground of deprivation was not only new to Dr Taylor but it was a ground which the Department had earlier and specifically disavowed.

[86] Dr Taylor is justified in his dismay that he was purportedly given an opportunity to respond to the Department’s invitation dated 27 January 2015, albeit under a tight time frame, only to later discover that the Ministerial notice had already been signed.

[87] While the grant of citizenship is not the conferral of an inalienable right there is no question that deprivation of citizenship is of such magnitude to the citizen that

a failure to observe the principles of natural justice is likely to imperil the integrity of the deprivation process.

[88] Dr Taylor was entitled to know not only the factual basis but the legal grounds for the proposed deprivation. That much is clear from the requirements of s 19(1) itself. Section 19(1) requires the Minister to serve a notice that:

(b) cites the section of the Act under which the Minister considers he or she has grounds to make such and order;

(d) advises the person of his or her right to have the matter reviewed by the Court.

[89] These are, as Dr Harrison characterised them, mandatory prerequisites to the making of an order depriving citizenship and they are mandatory for good reason.

[90] The Departmental letter of 12 June 2014 invited Dr Taylor to respond to grounds of fraud, false representation and wilful concealment. Significantly, mistake was expressly rejected. The Ministerial Briefing Paper advised the Minister that the Department had provided Dr Taylor with an opportunity to comment on the situation yet Dr Taylor had been given no opportunity to respond to the new ground of mistake before the Minister signed the notice on the ground of mistake. Dr Taylor was deprived of the opportunity to advance to the Department various arguments including possibly those put forward in submissions made during this hearing not only as to the legal position but also as to the nature and quality and in particular the seriousness of the alleged mistake.

[91] The third key event bearing on the fairness of the process was a shift in position notified to Dr Taylor and the Court during the course of the hearing. The following submission was made on behalf of the Minister:

The Minister accepts that in its recommendation to the Minister the Department advised that there was insufficient information to conclude that Dr Taylor had wilfully concealed the charges. The Minister proceeded on the basis of that advice. However, the Minister now considers that the Department’s recommendation was not correct. Given the Court’s ability to consider the grounds for deprivation de novo, the Minister submits that the most appropriate ground to the circumstances here is that of wilful concealment of relevant information.

[92] I accept Dr Harrison’s submission that it is “completely unacceptable”, including from an evidential point of view, for a change in Ministerial position to be advanced during the course of the hearing.

[93] To my mind the notification of yet a different ground for deprivation of citizenship and the manner of the notification compounded the pre-existing breaches of natural justice.

[94] It was submitted on behalf of the Crown that there was no prejudice in relying on a ground not previously notified to Dr Taylor because Dr Taylor has always known the facts underlying the statutory ground. Ms Gorman submitted that whether the ground is wilful concealment or mistake it comes down to a legal argument and, as s 19(2) does not confine the Court’s jurisdiction to the actual Notice, the Court is free to examine the flaws and determine whether or not they are material.

[95] To this submission Dr Harrison replied that Dr Taylor was entitled to respond to both the factual information as well as to the legal ground for deprivation. I agree.

[96] The Crown might infer that Dr Taylor’s response to the 12 June 2014 letter addressed the ground of wilful concealment as that was one of the three grounds originally proposed. But the Department accepted as “plausible” Dr Taylor’s explanation for not disclosing the arrest and it advised the Minister accordingly.

[97] In the context of a proposed deprivation of citizenship the obligation to act fairly required Dr Taylor to be given a fresh opportunity to respond on each occasion the Department or the Minster altered its stance on the grounds for deprivation. If such a process appears administratively arduous that may be attributable to the

length of time it took in this case for the Department and Minister to finally determine the statutory grounds to be relied on and the number of changes in position during that time. In this case the changes of position spanned 16 months.

[98] The fair hearing which the Department was purporting to provide to Dr Taylor was not fair and in the respects discussed his entitlement to natural justice has been breached. For these reasons the application for judicial review succeeds.

[99] The application for a declaration under s 19(2) of the Act is refused. [100] The Notice of Intention to Deprive a Person of Citizenship is set aside.

[101] Costs are reserved. If the parties are unable to agree costs memoranda may

Legal action/review/investigation	Outcome	Country	Date Day/Month/Year
Kalra Family (ex in laws) Dowry Case		India	20/11/

High Court of New Zealand Decisions

Taylor v Minister of Internal Affairs [2016] NZHC 868 (3 May 2016)