Nabou v Minister of Immigration [2013] NZHC 2112 (19 August 2013)

Last Updated: 28 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4215 [2013] NZHC 2112

UNDER Immigration Act 2009

IN THE MATTER OF an application for leave to appeal a

decision of the Immigration and Protection Tribunal pursuant to s 245 of the Immigration Act 2009

BETWEEN ALIPATE JORRIS LOLOMA NABOU Applicant

AND MINISTER OF IMMIGRATION Respondent

Hearing: On the papers

Counsel: TM Saseve for Applicant

C Griffin for Respondent

Judgment: 19 August 2013

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 20 August 2013 at 1:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Law Office, Wellington

Saseve Lawyers, Auckland

NABOU v MINISTER OF IMMIGRATION [2013] NZHC 2112 [19 AUGUST 2013]

[1] Mr Nabou is an immigrant from Fiji who held a New Zealand residence permit. On 17 August 2010 the Minister of Immigration ordered that Mr Nabou be deported[1] as a result of his having been convicted of criminal offences involving violence or threats of violence, on two separate occasions, against a woman he was in a relationship with. Mr Nabou was sentenced to 12 months’ imprisonment on three of the charges.

[2] The Immigration and Protection Tribunal (“Tribunal”) dismissed his appeal against the Minister’s decision. It found that it was not unjust or unduly harsh to deport Mr Nabou, and confirmed the deportation order.[2]

[3] Mr Nabou sought leave to appeal the Tribunal’s decision on questions of law,

pursuant to s 245 of the Immigration Act 2009. In a judgment dated 17 December

2012 I declined Mr Nabou’s application for leave to appeal.[3] Mr Nabou has not sought to appeal that decision. The time for filing an application for leave to appeal to the Court of Appeal expired on 5 February 2013.

[4] The respondent now seeks costs and disbursements on a category 2B basis,

but reduced to reflect the respondent’s actual costs. The total amount sought is

$7,228.87. Costs on a category 2B basis would amount to $8,922.61.

[5] Mr Nabou has not made any submissions on the issue of costs. His solicitor has advised that he has received no response to correspondence sent to Mr Nabou’s email address or to his last known address. Given that Mr Nabou’s application for leave was declined, he should have now left New Zealand in any event, although I

_{am not aware if he has in fact done so.}

[6] Rule 14.1 confers a general discretion on the Court to award costs. That discretion is not unfettered and should be exercised in accordance with the general scheme of Part 14, particularly rr 14.2 to 14.10.[4] The general principle is that costs follow the event, and that the losing party should make a reasonable contribution to the costs of the successful party.

[7] Mr Nabou’s application for leave to appeal was unsuccessful. I see no reason to depart from the usual practice that costs follow the event on the facts of this case. There does not appear to be any public interest or other countervailing considerations that would weigh against an award of costs being made in favour of the respondent.

[8] Costs calculated on a 2B basis would amount to $8,922.61. However, such costs would exceed the respondent’s actual costs (as billed by Crown Law to the Minister of Immigration). Accordingly, the costs award will be reduced to reflect the respondent’s actual costs. As set out in the schedule to the respondent’s memorandum, costs are awarded to the respondent in the sum of $5,362.40 together with disbursements in the sum of $923.57 and GST on those sums of $942.90. The

_{total award is therefore $7,228.87.}

_{Katz J}

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[1] Issued by the Minister of Immigration on 17 August 2010 pursuant to s 91(1)(b) of the

_{Immigration Act 1987 (now repealed).}

[2] _{Nabou v Minister of Immigration [2012] NZIPT 500093, 25 June 2012.}

[3] Nabou v Minister of Immigration [2012] NZHC 3365.

[4] Refer Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [24].