Department of Internal Affairs accepts process cancelling citizenship managed unreasonably

Immigration
Legislation:
Ombudsmen Act 1975
Legislation display text:
Ombudsmen Act 1975
Agency:
Government Department
Ombudsman:
David McGee
Case number(s):
W59833
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Complaint about decision of Department of Internal Affairs (DIA) to de-register complainant’s NZ citizenship by descent - complainant adopted in India by uncle who was NZ citizen - adoption considered to be a ‘recognised overseas adoption’ and complainant was registered as a citizen by descent in October 2002 

In order to be registered as a citizen by descent, an applicant must be under 14 years of age at time of adoption. The complainant in this instance was 13 years 8 months old at the time of adoption.

In May 2005, the Department of Internal Affairs (DIA) had been contacted by teachers at the complainant’s school, who expressed concerns that the complainant may have been older than his recorded age. The teachers’ view was that the complainant’s photograph in his original Indian passport (passport details only obtained by the school in 2005) was of a person significantly younger than the person who enrolled at the school in 2003. The teachers also considered that the complainant acted older than other students of his purported age.

In light of the school’s concerns, DIA conducted interviews with the complainant and his adoptive father, and was not convinced that the complainant would have been under the age of 14 years at time of adoption. At DIA’s request, the complainant undertook a hand and wrist x-ray in November 2005. According to the Greulich & Pyle standards, the results of this indicated that complainant was 19 years of age or older, more than two years older than his purported age at the time.

In light of the information provided by complainant’s teachers, DIA’s interviews, and the x-ray test, DIA was not satisfied that complainant was less than 14 years of age at time of adoption. DIA considered that the complainant was likely about 16 years of age at time of adoption.  In these circumstances, DIA no longer recognised his adoption for citizenship purposes and removed his name from the’ citizenship by descent’ register, on the grounds that registration had been the result of false representation, and that he was no longer entitled to be a NZ citizen by descent. His NZ passport was cancelled.

DIA’s letter had referred only to the Greulich & Pyle test wrist x-ray and advised the complainant that his citizenship by descent claim had been re-assessed on the basis of this new information provided concerning his correct age. The letter indicated to the complainant that the new information was confined to the Greulich & Pyle test. The Greulich & Pyle test made no reference to any age tolerance which might be taken into account (it seems that an age tolerance is essential in reporting the results of a Greulich & Pyle test) – there was no evidence of any contact between DIA and complainant between the date of x-ray and the date of DIA’s letter.

DIA’s report to the Ombudsman confirmed that this letter was the first advice to the complainant that he had been de-registered as a NZ citizen. The Ombudsman was concerned about the process DIA had used in this case. He noted:

I have concerns about whether a proper process has been followed in this case. De-registration from citizenship is a very significant action with important effects. It is an action that should not be taken arbitrarily. In my view, proper process requires that a person under consideration for citizenship de-registration be advised of the information relevant to such an outcome and be given an opportunity to question and respond to such information before a conclusion that is adverse to that person is arrived at. It does not seem to me that these steps were taken or fully taken in this case.

The Ombudsman commented that, while the complainant was aware that DIA had concerns about his age, because the DIA interviewer had specifically told him so, he was unaware of the school’s statements, or of the DIA interviewer’s comments following the interviews. The Ombudsman considered that all adverse comments in relation to complainant’s age should have been formally put to him and he should have been invited to respond to them before his citizenship by descent was de-registered. Instead, DIA’s letter gave him an indication of some of the information on which it was relying and at the same time announced its decision.

The Ombudsman concluded that the omissions on the part of DIA to advise the complainant of all the reasons why DIA considered that he was not considered to be entitled to NZ citizenship by descent and to allow him the opportunity to reply to those reasons, denied him the proper process to which he was entitled. Furthermore, these failings were unreasonable and unjust in terms of the OA.

DIA accepted that the process in this case had not been properly managed. Following further correspondence and discussions with DIA, it proposed that fresh information would be sought from the complainant and that DIA would re-examine the situation. The Ombudsman accepted the DIA proposal and no recommendation was necessary.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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