Part 6: Mr Jones' decision

6.1
In this Part, we discuss the processes and advice leading to Mr Jones' decision, the reasons why the Department recommended that Mr Liu's application be declined, and Mr Jones' reasons for authorising the grant of citizenship.

The submission

6.2
As well as the file the Department held on Mr Liu, Mr Jones was provided with a written submission drafted by Department officials.

6.3
The submission recommended that Mr Liu's application for citizenship be declined because, according to departmental policy:

• he did not satisfy the "good character" requirement of section 8(2) of the Citizenship Act;
• there were no exceptional circumstances of a humanitarian or other nature that meant it was in the public interest to grant him citizenship under section 9(1)(c); and
• he was not stateless, and was therefore not eligible for a grant of citizenship under section 9(1)(d).

6.4
The submission was reasonably lengthy – eight pages, with a large number of attachments. The attachments included:

• records of the Department's correspondence with other agencies about Mr Liu;
• correspondence from Mr Liu's lawyers setting out his response to the allegations made against him;
• the transcript of Mr Liu's interview with the Department officials;
• the letters of support received from Hon Pansy Wong, Hon Dover Samuels, and Hon Chris Carter; and
• a number of letters of support from members of the Chinese community and others.

6.5
The submission included an extract of the relevant legislation and a summary of it. It identified those requirements in section 8(2) that were clearly fulfilled (in the Department's view) and discussed, with reasons, why the other requirements had not (in the Department's view) been clearly fulfilled.

6.6
All of the section 8(2) criteria (including "entitlement to reside permanently in New Zealand") were stated to be clearly fulfilled except for the "good character" requirement.

6.7
The submission drafted by the Department clearly recorded that Mr Liu was the subject of an active Immigration investigation into his true identity. But it did not include any direct reference to Mr Cunliffe's decision or explain that Mr Cunliffe had said Mr Liu's file should continue to be assessed as a prosecution file and that he had not ruled out the possibility of revoking Mr Liu's residency in the future.

6.8
The submission also did not make specific mention of the Australian authorities' decision to revoke Mr Liu's residency. The settlement of the Australian proceedings was referred to in one of the attachments to the submission (in one of the letters from Mr Liu's lawyers). However, it was not a matter that was specifically drawn to the Minister's attention.

14 July 2008: Delivery of submission and Minister's first briefing

6.9
The submission and file were delivered to Mr Jones' office on 14 July 2008 by the Investigator who had largely been responsible for managing Mr Liu's file and for drafting the submission.

6.10
The Investigator told us he wanted to hand-deliver the submission and file because they contained classified information, but that he was not expecting to discuss them with Mr Jones (other than perhaps providing a short briefing). He told us it was not part of his normal role to brief the Minister. If the Minister wanted to discuss an application, the officials who would normally be called to the Minister's office were the General Manager of Citizenship or Head of Legal.

6.11
However, as matters transpired, there was a more extensive briefing. The meeting between Mr Jones and the Investigator lasted about one hour. It was the first of two meetings Mr Jones had with Department officials about Mr Liu's application.

The Investigator's account of the meeting

6.12
When he returned from the meeting, the Investigator made a brief file note of the meeting, which said:

I met with delegated Minister Jones to present Mr Liu's submission.

The submission was left securely with him. He would consider the case and following up with Immigration concerning their investigation.

I reiterated that it was the Department's view that Mr Liu was not able to meet the good character requirement.

6.13
He also emailed the General Manager as follows:

This morning I met with Minister Jones to discuss this case. The meeting lasted 1 hour. He is yet to make a final decision. I have left the file with him so that he can read the submission and carefully consider the facts.

Before making his final decision Minister Jones would like to:

• Find out the status of the INZ fraud investigation (he will ask for a report through his own office – given he is the Associate Minister of Immigration)
• Possibly consult with the three MPs who have written in support of Mr Liu.

Minister Jones was particularly interested in the harsh penalties Mr Liu may face if he ever returned to China to face justice.

After reading the submission he may have further questions for me or you (as Citizenship Manager).

I have spoken to Mr Liu this morning. He is aware that his application is under consideration.

6.14
The Investigator also spoke to the Immigration investigator with whom he had been dealing about Mr Liu's case. The Immigration investigator recorded in a file note that he had asked the Department's Investigator why Mr Jones, rather than Mr Barker, was making the decision, and that the Department's Investigator had told him that Mr Jones had asked about the ramifications of Mr Liu being sent back to China.

Mr Jones' account of the meeting

6.15
Mr Jones provided us with an affidavit outlining his recollection of events, and also a copy of a hand-written document which he explained was the file note he had made of the meeting immediately after it. The note is reasonably lengthy (three pages) and records both the topics that were discussed and Mr Jones' impressions of the Investigator.

6.16
Mr Jones told us that he did not keep file notes as a matter of course, but that, after discussions with his political adviser, he felt it important to keep a record in this case because of particular concerns he had about the case and the advice he had been given. He said he did not provide this note to anybody else at the time, because he made it for his own purposes.

6.17
In summary, Mr Jones' file note records the following points:

• The Investigator explained that the Citizenship Act has certain criteria and that Mr Liu satisfied all of them except for the "good character" requirement. He had explained that the Act allows the Minister to make the decision, but the decision could be reviewed, so would need to be within the confines of the Act.
• The Investigator had said that Mr Liu had character problems and that he ought to go back to China to sort out his issues with the Chinese authorities. His unwillingness to go back to China or to approach the local embassy indicated that he was not of good character.
• They went on to discuss concerns about human rights in China, which the Investigator acknowledged, but told the Minister were "… not relevant to his role as he is not required to verify the accuracy etc of the claims either way."
• The Investigator then "noted that this decision is made under Citizen Act and not immigration. Feels that this man will never want to go back to China because when he arrives there he will be arrested, imprisoned, executed & have his organs harvested. Not a concern though for the Dept …"
• The Investigator pointed out that Mr Liu may have been living in New Zealand under a false identity but that that was a matter for Immigration and the Department did not have a report to consider as part of the file.
• He agreed with the Minister that Mr Liu had no convictions in New Zealand and appeared to be getting on with his life. However, he had said the outstanding allegations in China and Mr Liu's unwillingness to address them meant he was unfit for citizenship.
• Mr Jones' response was that it was not his approach to "send people back to a future which ends in execution" to which the Investigator had again replied that "such considerations are not germane to this decision. He has the option of going back to China & sorting his issues out and then coming back in the future."
• The Investigator expressed scepticism about Mr Liu's associations with Falun Gong and business commitments in New Zealand.
• He had said that Mr Liu's family situation was not important and, in his view, did not constitute a humanitarian argument. However, he had pointed out to the Minister that family ties are covered in the Citizenship Act and suggested he read the submission from Mr Liu's wife.
• The Investigator had said that the representations Mr Liu had received from MPs were also not relevant in the view of the Department because MPs do not have all the information and the applicant may not have told them the truth.

6.18
In the closing paragraphs, Mr Jones' note records that the Investigator had stressed the importance of not looking for proof because this was not necessary in determining an applicant's character.

6.19
The note also records that, when Mr Jones asked about the natural justice implications of this approach, the Investigator had said this was "not his role" and that the Interpol alert showed that Mr Liu could not be of good character. The Investigator had referred the Minister to the Crown Law opinion, which had been provided to Mr Barker in relation to a similar case, and which provided guidance on the "good character" requirement and unproven allegations.

6.20
In conclusion, Mr Jones' note records that he found the briefing "harrowing" and that he felt it was designed to close down the exercise of ministerial discretion.

The Investigator's response to Mr Jones' file note

6.21
We provided the Investigator with a copy of Mr Jones' file note and asked for his response. He told us he did not recall in detail what happened at the meeting, but said he did not think that Mr Jones' note accurately recorded what was discussed – that some of the comments Mr Jones had attributed to him were comments he would not have made.

6.22
His recollection was that the focus of the meeting was the Minister's concern about whether the allegations against Mr Liu were true. He said he did not specifically recall the discussion about human rights but agreed it was possible they discussed them. However, he specifically denied referring to the death penalty or the potential harvesting of organs.

Our comments

6.23
We were not able to fully resolve the different accounts of Mr Jones and the Investigator about what occurred at the meeting. However, there are certain matters that either are not in dispute or which are, in our view, likely to have been discussed:

• The meeting lasted for about one hour. The Investigator's file note, and emails he wrote to the General Manager and to the Immigration officer, do not record the entire content of the meeting.
• Both parties agree that they discussed whether the allegations against Mr Liu were true.
• We consider that the Investigator attempted to explain to the Minister that, according to departmental policy at the time, the existence of the allegations meant that Mr Liu could not satisfy the "good character" requirement under section 8, and that the Department was not required to go further than this and make findings about an applicant's guilt or innocence. Under the Citizenship Act, the burden of proof about good character matters rested with the applicant rather than the Department.
• However, that stance caused Mr Jones some concern (as it had for Mr Barker, in a similar case). Mr Jones wanted information or analysis that would help him to assess whether the allegations had any substance.
• The Investigator attempted to explain to the Minister that Mr Liu had the option of returning to China or approaching the Chinese Embassy in New Zealand to seek to resolve the allegations made against him. The option of approaching the relevant authorities to resolve unproven allegations was in keeping with departmental policy at the time.
• However, Mr Jones was concerned about the consequences for Mr Liu if he returned to China and the potential penalties he might face. The Department did not have any information, or provide advice to the Minister, about the possibility of Mr Liu being subject to the death penalty; these were issues raised by Mr Liu's lawyers, in submissions made on behalf of Mr Liu. However, we consider that there was a discussion about human rights issues because this is also recorded in the Investigator's records of the meeting. We consider it likely that that discussion also included reference to the death penalty because this was something Mr Liu and his lawyers had specifically alluded to in their conversations with the Investigator when he was drafting the submission (see paragraphs 5.52-5.53).

6.24
Overall, our impression was that the meeting between the Minister and the Investigator probably involved a reasonably high level of miscommunication and misunderstanding.

6.25
The Investigator acknowledged that he had never briefed a Minister before, and that it was not something he had anticipated having to do when he delivered the submission. He said he found it a fairly intimidating experience and that his approach was to "stick to the departmental line".

6.26
With unproven allegations, that meant that it was not the Department's job to assess whether an applicant was guilty or innocent, and that the existence of the allegations meant he did not meet the criteria for citizenship.

6.27
Similarly, from the Department's perspective, the potential risks to Mr Liu's life were irrelevant, because a decision not to grant him citizenship would not have resulted in Mr Liu being sent back to China. He had the right to permanent residency in New Zealand, so these risks would only have arisen if his permanent residency permit were revoked – which was a matter for Immigration.

6.28
Although he was married to a New Zealand citizen and had New Zealand-born children, neither his family circumstances nor the potential risks to his life were relevant considerations under the "exceptional circumstances" provision of the Citizenship Act according to departmental policy at the time. Similarly, any business interests he might have did not satisfy the "public interest" test, because it was not necessary for him to have citizenship to pursue those interests.

6.29
Mr Jones, for his part, appears to have become frustrated with the Investigator's approach and interpreted his unwillingness to address the substance of the allegations made against Mr Liu as unquestioning acceptance of unsubstantiated allegations, and his statements that Mr Liu's concerns about the risks to his life were not relevant as callous and inhumane.

6.30
In our view, that was unfair to the Investigator, who was simply attempting to explain the Department's approach to unproven allegations. However, Mr Jones' frustration is also understandable. We do not consider that the Investigator intended to close down the Minister's discretion. When we spoke to the Investigator, he was clearly aware of, and accepted, that it was for the Minister to make the decision. Nor do we consider that he intended to avoid the issues. However, in his attempt to "stick to the departmental line", his perceived unwillingness to engage on matters that were of serious concern to Mr Jones might have come across that way.

Summary

6.31
In summary, this first meeting probably involved a reasonably high level of miscommunication and misunderstanding on both the Investigator's and Mr Jones' part.

6.32
Mr Jones' central concerns – whether the allegations were true and the potential risks to Mr Liu's life if he returned to China – were not resolved. Nor did Mr Jones clearly understand why the Investigator had insisted that these concerns were not relevant.

6.33
In our view, there were also problems with the submission. The submission had made Mr Jones aware that there was an on-going Immigration investigation into Mr Liu. The Department had not pointed out that, although the Minister of Immigration, Mr Cunliffe, had previously considered revoking Mr Liu's permanent residency, he had decided not to at that time but had not ruled out the possibility of reconsidering the matter in the future. Nor did the submission explain that the Australian authorities had revoked Mr Liu's Australian permanent residency permit,² and that authorising the grant of citizenship would effectively override those decisions.

6.34
The result was that, at the end of this first briefing, Mr Jones did not have a clear understanding of the relevant background facts, the way the Citizenship Act worked, or the policies and approach applied by the Department for the "good character" and "exceptional circumstances" provisions.

6.35
The nature of his misunderstanding is evident in one section of the affidavit Mr Jones provided to us:

The application involved was about granting citizenship, not extradition, but the officials saw it as somehow enabling the applicant to be forced back to China. I did not understand this approach, as the applicant was a permanent resident and the official's attempt to revoke the same had been refused on the 15th of October 2007 by then Minister of Immigration – Hon David Cunliffe.

Citizenship would not change the Chinese government's position should it wish to avail itself of using the New Zealand legal system to require the return of the applicant.

From the outset, I was deeply troubled by the attitude of the New Zealand officials, the callous approach to the forcing of a human being to return to China with the risk of execution, as the suggested outcome of a refusal to grant citizenship. The applicant is the father of two young New Zealanders, and I was not going to risk making them orphans based on the information I had to consider.

6.36
In our view, the omissions from the submission and the misunderstanding between the Minister and the Investigator at this first meeting are significant. Although the Minister went on to receive further advice from officials, these fundamental misunderstandings were never resolved.

24 July 2008: Minister's second briefing

6.37
After his meeting with Mr Jones on 14 July, the Investigator sent an email to Mr Liu's lawyers telling them that the file was now with the Minister. The following day, on 24 July, Mr John Billington QC wrote to Mr Jones on Mr Liu's behalf asking for a copy of the submission under the Official Information Act 1982. This request led to Mr Jones requesting a second meeting with Department officials.

6.38
The request for a meeting came at short notice (about half an hour). Attempts were made to contact the General Manager of Citizenship and Head of Legal, who would normally have briefed the Minister. Neither was available, so the meeting was attended by the same Investigator and one of the Department's Solicitors (who was familiar with the file and had helped draft the submission). The Solicitor told us that, in the time available, she sought advice from one of the other senior legal advisers before attending the meeting.

6.39
Mr Jones' Political Adviser was also at the meeting.

6.40
Mr Jones told us that he had no recollection of this meeting. The Investigator's recollection was also limited. The Solicitor had some recollections of the meeting and also provided us with a file note she had written about the meeting. Mr Jones' Political Adviser was able to provide us with an account of the meeting, but his recollection was that discussions took place over more than one meeting.

6.41
Despite the unclear recollections of the participants, it is clear that the focus of this second meeting was to decide how to respond to the Official Information Act request from Mr Billington and, in particular, whether Mr Liu should be given a copy of the submission. There were concerns about doing this because the submission included some information that had been withheld from him under the Official Information Act.

6.42
Mr Jones' view was that Mr Liu should be given the opportunity to review the submission in full and he questioned the natural justice implications of withholding information from Mr Liu.

6.43
The Solicitor told us she explained to the Minister that the Department's view was that there were grounds for withholding information under the Official Information Act, and that the general principle that official information should be disclosed can be outweighed by countervailing factors that applied in this case.

6.44
Both the Investigator and the Solicitor told us that Mr Jones reiterated his concern about being asked to make a decision about Mr Liu's character based on unproven allegations. They explained that most of the information on Mr Liu's file, and the substance of the Department's concerns, had been provided to Mr Liu, that he had been given several opportunities to respond, and that it had been Mr Liu's choice to have his application presented to the Minister even though these matters were unresolved.

6.45
They also both told us that the Minister expressed his impatience with the Investigator and told him, at one point, that he did not want to hear anything more from the Investigator.

6.46
At the end of the meeting, the decision was made to provide the submission to Mr Liu and his lawyers but with certain parts – principally about the ongoing investigations by Immigration and other agencies that Mr Liu was not already aware of – redacted from the document.

6.47
After the meeting, the Solicitor left a voice message with the Head of Legal to brief him on what had happened at the meeting. She also briefed the Head of Legal and General Manager of Citizenship the following morning.

29-30 July 2008: Attempts to organise briefing from New Zealand Police

6.48
In the two days after their meeting with Mr Jones, the Investigator and the Solicitor liaised with Mr Jones' Senior Private Secretary to prepare a redacted version of the submission and a response to Mr Billington's letter. These documents were reviewed and approved for release to Mr Billington by the Head of Legal.

6.49
A covering letter was also drafted for the Minister, in which he agreed to receive further information about Mr Liu's application from Mr Billington. The letter and redacted submission were sent to Mr Billington on 30 July 2008.

6.50
During this two-day period, the Investigator made attempts to ensure that the Minister would be briefed by the New Zealand Police before making his decision. He emailed first the Solicitor and then the General Manager, suggesting that it would be a good idea if the Minister were to be given a briefing by the New Zealand Police before he made a decision. In his email to the General Manager, the Investigator noted that "[the Department] is not in a position to talk about either the police investigation or to present their intelligence holdings".

6.51
In his reply, the General Manager said that he had spoken to Mr Barker's Private Secretary about a proposed briefing from the New Zealand Police and that she had wanted to talk to her predecessor in the role, who was now Mr Barker's political adviser. He had not heard back from them at that point. We understand that Mr Barker's office was approached, rather than Mr Jones' office, simply because the Department officials knew the officials in Mr Barker's office but had had no previous dealings with Mr Jones' officials.

6.52
Neither Mr Barker's Private Secretary nor his Political Adviser could recall any conversations on the topic of arranging a briefing, but agreed that it might have happened. The Private Secretary told us that, if she had been asked to organise such a briefing, she would have been unsure how to respond, because it was a relatively unusual situation, and it is likely that she would have asked her colleague's advice.

6.53
The Political Adviser told us that, if she had been asked about organising a briefing, her advice would probably have been that the Department needed to contact officials in Mr Jones' office to arrange it because Mr Barker had declared a conflict of interest and it was not appropriate for his office to become involved.

6.54
Although it is not clear from the file exactly what was discussed, it is clear that no briefing took place.

4-5 August 2008: Minister's request for legal advice

6.55
On 4 August 2008, Mr Billington faxed a nine-page submission with enclosures to the Associate Minister, on Mr Liu's behalf.

6.56
At about 10.00 am the following day, Mr Jones' Political Adviser sent Mr Billington's letter by email to the Solicitor, stating that the Minister wanted any comments by the end of the day because he was due to go to Australia and wished to make a decision before he left. Mr Jones did not give any particular reason why he wanted to make his decision before he left for Australia. He told us that it was simply because the case had been dragging on for so long and he thought the right thing to do was make a decision promptly one way or another.

6.57
Within the time available, the Solicitor prepared a draft response which was then reviewed by the Head of Legal and sent by email under his name at around 3.15 that afternoon.

6.58
The Head of Legal told us that his assumption at that stage was that if Mr Jones declined Mr Liu's application then Mr Jones' decision would be judicially reviewed. His email set out advice about the requirements for citizenship, and concluded:

It is of course open to the Minister to defer making a decision on the application pending the outcome of any investigation to give him a greater degree of certainty as to the veracity of the allegations made about Mr Liu. It is also open to the Minister to defer making a decision until Mr Billington's submissions had been given more detailed consideration and any necessary points of clarification referred back to him. That latter course would be highly advisable if a decline were contemplated at this stage, given the reasonably clear suggestion that an application for judicial review action might follow.

Further attempt to arrange briefing with New Zealand Police and with Immigration

6.59
On 5 August, the Investigator repeated the earlier attempts he had made to arrange for the Minister to be briefed by the New Zealand Police before making his decision. The Investigator sent another email to the Solicitor, copied to the General Manager, recommending that the Minister be given an oral briefing from the Police, and also Immigration officials, and asking the General Manager whether he had heard back from anyone in Mr Barker's office.

6.60
The Solicitor replied that the General Manager was away sick and that she presumed he had not heard back from Mr Barker's officials. Her email continued:

If the Minister wants to make a decision today (once he had received the Department's response to Mr Billington's submissions) then he can of course do so. If it is decided recommending a Police briefing is still appropriate then we first need to hear back from Minister Barker's office. [Name of senior official] would you like me to follow up with [Mr Barker's Private Secretary] on this matter?

6.61
Later that day, the Investigator contacted his counterpart at Immigration to find out whether the Minister or anyone in the Minister's office had been in touch about Mr Liu's application. He was told they had not, and passed this information on to the Solicitor.

6.62
We did not find a record of a response to the Solicitor's email referred to in paragraph 6.60. But, in the event, the Solicitor's offer to follow up with Mr Barker's officials was overtaken by Mr Jones' decision, the next day, to approve Mr Liu's application.

6 August 2008: The Minister's decision

6.63
The next morning, on 6 August, the Minister decided to authorise the grant of citizenship to Mr Liu.

6.64
When he came to do so, he crossed out the line of the decision paper saying that the application was declined, and ticked the line that said that the grant of citizenship was authorised.

6.65
Before doing so, he asked his Political Adviser whether he should record the reasons for his decision. His options were to grant citizenship under:

• section 8(1), on the grounds that Mr Liu satisfied the relevant criteria, including the "good character" requirement;
• section 9(1)(c), on the grounds that he believed it was in the public interest to grant citizenship because of exceptional circumstances of a humanitarian or other nature; or
• section 9(1)(d), on the grounds that Mr Liu would otherwise be stateless.

6.66
Mr Jones told us his reasons for granting citizenship were essentially humanitarian, so he was effectively granting citizenship under section 9(1)(c). Authorising citizenship under section 9(1)(c) meant that Mr Jones had implicitly rejected the Department's advice that Mr Liu did not satisfy the "exceptional circumstances" or "public interest" requirements of section 9(1)(c). It is unclear whether he took "good character" into account, because good character is not a mandatory consideration under section 9.

6.67
Mr Jones' Political Adviser told us that they discussed whether Mr Jones should record the reasons for his decision, and that he advised him not to in the absence of legislative requirement, convention, or a request from the Department. He told us this was because, in his experience as a political adviser, there were both legal and political risks in doing so. For example, if the Minister's decision became public for any reason, any reference to Mr Liu's potential treatment by the Chinese authorities might cause a degree of political embarrassment.

6.68
His other main concern was that, unless Ministers were extremely careful about how they recorded their reasoning, there was the risk that it would expose them to the risk of judicial review.

6.69
Mr Jones followed the advice he was given and simply signed the submission and annotated it to show that he had approved the citizenship application.

6.70
Mr Billington was notified of Mr Jones' decision at about 9.30 that morning. A copy of the email notifying Mr Billington was sent to the Department.

11 August 2008: The citizenship ceremony

6.71
On 7 August, the day after Mr Jones approved Mr Liu's application for citizenship, Mr Liu's lawyer wrote to the Department requesting an urgent citizenship ceremony for Mr Liu, saying "he cannot wait to be a New Zealand citizen" and wanted to travel overseas urgently. The letter noted that Mr Samuels would be getting in touch with the Department about the ceremony.

6.72
In an email exchange between one of the officials responsible for organising citizenship ceremonies and Mr Barker's Private Secretary, the official advised that they were going to recommend that Mr Liu's application for an urgent ceremony be declined because he did not meet the general criteria for urgent ceremonies. However, she said that if the Minister approved a private ceremony, then the General Manager would consider approving an urgent ceremony.

6.73
In an undated letter, but presumably also written on 7 August, Mr Samuels wrote to Mr Jones asking his consent to officiate at the ceremony. Mr Jones scribbled a note on the bottom of the letter saying "Kia ora. OK. Deal with the officials."

6.74
Under the Citizenship Act, Mr Jones' consent was not needed for Mr Samuels to officiate. As an MP, Mr Samuels is authorised to conduct citizenship ceremonies. But Mr Jones' consent was needed for a private ceremony.

6.75
Mr Jones told us that, by this stage, he had had enough of the matter and that his note meant that Mr Samuels should sort it out with the officials rather than with him. He said that he was not aware that ministerial approval was needed for a private ceremony and his note was not intended to be read as an approval.

6.76
The General Manager told us his understanding was that the Minister had given approval for a private ceremony. He said that, although Mr Liu did not meet the standard criteria for an urgent ceremony, equally there was no particular reason for not agreeing to one if it could be arranged in the time frame requested. Officials were able to organise a ceremony in consultation with staff in Mr Samuels' office, so the General Manager approved it, seeing no particular reason not to.

6.77
The arrangements for the ceremony were made by officials in Mr Samuels' office liaising with the Department officials.

6.78
On 11 August 2008, Mr Liu's citizenship ceremony took place in the Māori Affairs Committee Room in Parliament with Mr Samuels officiating.

Our comments

6.79
We found no evidence to suggest that Mr Jones' decision to grant Mr Liu citizenship was made for any improper reasons.

6.80
Although the Department had advised that Mr Liu did not satisfy the section 9(1)(c) criterion, Mr Jones granted Mr Liu citizenship because he was genuinely concerned about matters of a humanitarian kind relating to Mr Liu and his family. His understanding of the advice he had been given was that the New Zealand authorities did not know whether the allegations against Mr Liu were true, and that if Mr Liu were forced to return to China to respond to them, there was a risk that he might be executed.

6.81
Mr Jones did not realise the consequences his decision would have on Immigration's investigation because he did not know that revocation of residency was still being actively considered by Immigration. He believed that, if Immigration's investigation established evidence of wrong-doing on Mr Liu's part, these matters could be appropriately dealt with by the New Zealand Courts and that the courts were the proper forum for such matters to be determined.

6.82
Although it is not our role in this inquiry to comment on the substance of Mr Jones' decision, we consider that the process leading to that decision was flawed in a number of respects.

Adequacy of advice

6.83
Mr Liu's application was known to be both unusual and particularly complex. Although a standing transfer of citizenship decisions to Mr Jones had been agreed several months earlier, Mr Jones had never before been called on to make a citizenship decision. This turned out to be the only citizenship decision he made. Mr Jones was called on to decide Mr Liu's application under conditions of apparent urgency, and without any formal briefing on the requirements of the Citizenship Act. Although citizenship decisions appear in some ways similar to immigration decisions (which Mr Jones was experienced in making), they require the Minister to apply quite different considerations.

6.84
Given these circumstances, we consider that the advice the Minister was given was inadequate.

6.85
The submission did not include two important pieces of information.

6.86
First, it did not explain that, although Mr Cunliffe had decided not to revoke Mr Liu's permanent residency permit at that time, he had recorded in the decision paper that Mr Liu's file should continue to be investigated as a potential prosecution file and that he did not discount the possibility of reconsidering the matter in the future.

6.87
Secondly, it did not explain that the Australian authorities had earlier decided to revoke Mr Liu's Australian permanent residency permit.³

6.88
Because this information was not included in the submission, the effect granting citizenship would have on these decisions was not evident – that if Mr Liu were granted New Zealand citizenship:

• he would no longer require a permanent residency permit, so any process that was under way to revoke it was likely to be undermined; and
• he would obtain the right to reside in Australia, undermining the decision of the Australian authorities to revoke that right.

6.89
We discussed with officials whether the details of Mr Cunliffe's decision and the decision of the Australian authorities to revoke Mr Liu's Australian residency permit would have been available to them at the time – and if so, why it had not been included in the submission.

6.90
Our inquiries confirmed that the information was available to the Department. It was unclear why it was not included. It was suggested that the decision of the Australian authorities might not have been considered a relevant consideration under the Citizenship Act.

6.91
It was also suggested that the detail of Mr Cunliffe's decision might not have been considered directly relevant given that:

• the scheme of the Citizenship Act simply required the Department to confirm whether the applicant had the right to reside permanently in New Zealand, which, at the time of his application, Mr Liu did have; and
• the Minister was Associate Minister of Immigration, so it would have been assumed he was generally familiar with immigration processes. He had also been made aware that there was an on-going investigation into Mr Liu's permanent residency status, and that this had been triggered as a result of concerns about the basis on which residency had been granted. Also, the Minister had himself indicated that he intended to talk to Immigration officials further about the matter.

6.92
Although we understand the Department's point of view, ultimately it was its responsibility to ensure that the Minister was properly briefed and that all the relevant information was put before him, particularly for a difficult case.

6.93
We consider it likely that one of the reasons for the gaps in the advice was that, at the time the submission was drafted, the assumption was that it would be Mr Barker making the decision on Mr Liu's application. A certain level of knowledge and ability to "read between the lines" might have been assumed.

6.94
In our view, once the Department became aware that the decision was being transferred to a Minister who had never been called on to make a citizenship decision before, it should have taken stock and considered whether the submission included everything it needed to for a different Minister to make a fully informed decision.

Minister should have been briefed by senior officials

6.95
We also consider that, once the Department became aware that the decision was going to be transferred to Mr Jones, it should also have taken steps to ensure that he was properly briefed on the requirements of the Citizenship Act and that the briefing was provided by officials with the appropriate level of experience and seniority.

6.96
The officials involved in briefing the Minister about Mr Liu had no previous experience of briefing Ministers and on both occasions were required to brief the Minister at short notice. Both acknowledged that they found the experience reasonably intimidating.

6.97
In our view, they should not have been put in that position, especially given that the file was known to be particularly sensitive and complex. We also consider that, once it became clear that the Minister had concerns about the file, senior staff should have done more to escalate matters to ensure that the Minister's concerns were addressed.

The Department should have ensured that the Minister was briefed by other agencies involved in investigating Mr Liu

6.98
It is clear from our review of the files and our discussions with the Department officials that they were concerned about briefing the Minister on matters that were outside their immediate mandate. They were also concerned about disclosing information that had been given to them under an obligation of confidence. We recognise these concerns.

6.99
We also accept the point made to us that the current legislative framework effectively requires separate and, to an extent, independent decision-making processes for immigration and citizenship matters.

6.100
However, in our view, the investigations being carried out by other agencies were relevant to the citizenship decision. Ultimately, it was the Department's responsibility to ensure that all the relevant information was placed before the Minister before he made his decision.

6.101
If officials were concerned about briefing the Minister on matters outside their immediate mandate, then they should have recommended, as part of the submission, that he consult the other agencies involved. Once the Department became aware that Mr Jones had not been briefed by the New Zealand Police and Immigration, the matter should have been escalated to ensure that he was.

6.102
We acknowledge that attempts were made to organise a briefing, and that the reason a briefing did not take place was partly because of uncertainty about the protocol for arranging such a briefing, and partly because the steps that were under way to organise a briefing were overtaken by Mr Jones making his decision.

6.103
In the end, though, concerns about administrative protocol effectively took precedence over the need to ensure that the Minister had all the information he needed to make an informed decision.

The Minister's decision

6.104
Suggestions have been made that Mr Jones' decision was influenced by Mr Liu's connections with some of Mr Jones' colleagues and associates, or by his investments in the fishing industry (an industry with which Mr Jones has long-standing associations).

6.105
We found no evidence to support this. There is no evidence of any direct association between Mr Liu's investments and any interests Mr Jones might have, or that Mr Liu's connections with Mr Jones' colleagues and associates played a particular part in the decision that was reached.

6.106
However, given that responsibility for the decision rested with the Minister, there are aspects of the process followed by Mr Jones that we consider are open to criticism.

6.107
We acknowledge that Mr Jones gave considerable thought to Mr Liu's application, and that, in his view, it was important to make a decision reasonably promptly. However, in our view, he made his decision too hastily and without ensuring that he had a full understanding of all the relevant information. In particular, Mr Jones either did not understand or did not accept the Department's advice that neither section 8 nor section 9 of the Citizenship Act were applicable.

6.108
Given that, as Mr Jones acknowledged, there were aspects of the Department's advice that he did not understand, he should have clarified these matters before making his decision.

6.109
In our view, given that he knew there were ongoing investigations by Immigration and the New Zealand Police, he should also have consulted them before making his decision, as the Investigator's note of the first meeting suggested he was intending to do.

6.110
We also consider that Mr Jones should have recorded his reasons for authorising the grant of citizenship. He was making a decision against the Department's recommendation, and the basis for his decision and reasons for departing from normal policy would not have been obvious from the papers. Indeed, on the face of the decision-making papers, it was not even clear under which section of the Citizenship Act he had authorised the grant.

Decision to approve urgent, private citizenship ceremony

6.111
When seen in isolation, there was nothing particularly unusual about Mr Liu's citizenship ceremony. Although not the norm, private ceremonies, including ceremonies at which MPs officiate, do take place regularly. MPs are specifically authorised to conduct citizenship ceremonies under the Citizenship Act.

6.112
However, when viewed in the context of the events immediately preceding it, the decision to approve an urgent private ceremony, presided over by an MP and colleague of the Minister who had approved the citizenship decision, only served to fuel speculation that Mr Liu was able to "pull strings" as a result of his political connections.

6.113
We were not given any information that suggested this. The General Manager agreed to an urgent ceremony because he believed Mr Jones had approved a private ceremony. Mr Jones, not being familiar with the specific requirements of the Citizenship Act, was not aware that his consent was needed for a private ceremony and thought he was simply directing Mr Samuels to arrange the ceremony with officials.

6.114
We note that this was another example where the Minister did not clearly explain or document the reasons for his decision.

6.115
The decision to approve an urgent private ceremony, following so closely the decision to authorise the grant of citizenship against the recommendation of officials, caused a degree of consternation among the Department's staff. It added to the impression that Mr Liu was receiving special treatment.

6.116
As we have discussed elsewhere in this report, although we found no evidence of wrong-doing in this case, citizenship decisions are particularly vulnerable to undue influence – or the appearance of it.

6.117
The decision to approve an urgent private ceremony is another example of the need for decision-makers to consider carefully not only whether their decisions are lawful and proper, but how they might look to an outside observer.

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2: As noted above, the decision of the Australian authorities to cancel Mr Liu's Australian permanent residence was overturned by the Australian courts in June 2008.

3: We note that, by this time, the decision to cancel Mr Liu's Australian permanent residence permit had been overturned by the Australian Federal Court. It is not clear whether the New Zealand authorities were aware of this.

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