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High Court of New Zealand Decisions |
Last Updated: 10 July 2018
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NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING
PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED
PURSUANT
TO S 151 OF THE IMMIGRATION ACT 2009. SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-87
[2018] NZHC 1011 |
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UNDER
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the Immigration Act 2009
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IN THE MATTER
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of the 1951 Convention relating to the Status of Refugees and its 1967
Protocol, the
Immigration Act 2009, the New Zealand Bill of Rights 1990, s 131 of the
International Covenant on Civil and Political Rights 1966
and ss 130(1) and (6)
of the Convention Against Torture 1987
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BETWEEN
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HA
Applicant
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AND
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REFUGEE AND PROTECTION OFFICER
Defendant
Continued over page....
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Hearing:
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On the papers
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Counsel:
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Applicant in person (McKenzie friend, B Johnson of International Justice
Advocates Ltd)
J D Simpson for the Respondents
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Judgment:
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9 May 2018
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COSTS JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 9 May 2018 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:..............................
HA v REFUGEE AND PROTECTION OFFICER [2018] NZHC 1011 [9 May 2018]
CIV-2017-404-88
UNDER the Judicature Amendment Act 1972 and the Immigration Act 2009
IN THE MATTER of the 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol, the Immigration act 2009, the New Zealand Bill of Rights Act 1990, s 131 of the International Covenant on Civil and Political Rights 1966, and ss 130(1) and
(6) of the Convention Against Torture 1987
BETWEEN HA
Applicant
AND IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
REFUGEE AND PROTECTION OFFICER
Second Respondent
Counsel/Solicitors:
J D Simpson, Meredith Connell, Auckland
Copies to:
The applicant
B Johnson, International Justice Advocates Ltd, Auckland
[1] The respondent seeks costs on a 2B basis in respect of the applicant’s failed application for leave to appeal and to commence judicial review proceedings, all arising out of a refusal by the Immigration Tribunal to recognise him as a refugee or protected person.1
[2] I accept 2B as the appropriate basis for the calculation of costs. The applicant does not contend otherwise. I accept also the respondent’s submission that, calculated on that basis, costs of $9,589 plus disbursements of $270 are payable.
[3] The applicant says, however, that I should not fix costs in this amount having regard to:
(a) the human rights aspect to his claim; and
(b) his limited financial circumstances.
[4] As to the first of these submissions I adopt the recent observations of Downs J in AR v Immigration and Protection Tribunal in terms:2
- [4] The human rights point raised by AR is largely co-terminus with his third point: the refugee context. I know of no authority which permits this context to displace normal costs principles. And none was cited to Palmer J in a recent costs decision in connection with a failed refugee claim.
[5] I do not accept that HA’s application raised issues of public importance sufficient to invoke the jurisdiction under r 14(7)(e) of the High Court Rules to eliminate or reduce costs. Such application was against a Tribunal decision which found that, individually and cumulatively, deficiencies and inconsistencies in the applicant’s evidence meant that his claim to refugee status was insufficiently credible. This Court held that such a finding was reasonably available to the Tribunal. The matters in issue were particular to the applicant and did not in my view qualify the case as one of public interest.
1 HA v Refugee and Protection Officer [2017] NZHC 1787.
2 AR v Immigration and Protection Tribunal [2017] NZHC 2312 at [4].
[6] As to the applicant’s means, there is authority that financial hardship may be taken into account under the “catch-all” provisions of r 14.7(g), which recognises the existence of some “other reason” justifying the Court refusing or reducing costs.3
[7] In doing so these cases have emphasised that:
(a) financial hardship is not an answer to a claim for a costs award;4
(b) costs awards must be made at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit;5 and
(c) there is a preference for evidence of limited financial means to be provided in the form of a sworn affidavit (where this is not already established in the substantive proceedings).6
[8] Beyond these observations, however, it is difficult to distil from the authorities any coherent set of principles which might guide exercise of the r 14.7(g) discretion in the context of an impecunious party liable for costs
[9] Other cases have adopted a different approach, noting that consideration of financial circumstances under r 14.7(g) would, in the words of Cooper J in Singh v Immigration and Protection Tribunal:7
.... create a precedent of potentially very wide application and ultimately would not be justified having regard to the other, more specific provisions of the relevant rules.
4 Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].
7 Singh v Immigration and Protection Tribunal [2014] NZHC 2065 at [8].
[10] In the most recent decision of this Court relating to this issue, BR (Bangladesh) v Chief Executive, Ministry of Business, Innovation and Employment, Duffy J followed Singh and held that the unsuccessful applicants’ circumstances, which they said permitted instalment payment of only $2,500 in costs, against a $7,136 liability:8
... do not provide a basis for departing from the general principle regarding costs.
[11] In the present case the Court does not have an affidavit as to HA’s means but I accept that, with the expiry of his work visa, he is now substantially reliant on the charity and goodwill of friends. I accept also that he has no significant assets from which an award could be paid. A copy of a bank statement provided by him indicates a subsistence existence.
[12] Originally he proposed that costs be set at 25 per cent of that calculated on a 2B basis, to be paid at the rate of $50 per week from his income. But with the termination of his employment he now proposes payment of the sum of $1,000 funded by donations.
[13] I am prepared to accept for the purposes of fixing costs that HA’s position is one of hardship. I also accept that were it not for his inability to identify counsel who was prepared to take his case on legal aid, he would now be substantially insulated from a costs award by virtue of s 45(2) of the Legal Services Act 2011. But that cannot be a determinant of outcome.
[14] The respondent invites me to follow the approach in BR (Bangladesh) v Chief Executive, Ministry of Business, Innovation and Employment. It says that although it will take into account the reality of the applicant’s circumstances when it comes to enforcement of the costs order, the requirement for predictable and expeditious determination of costs would be significantly undermined if parties’ financial circumstances became a matter of routine inquiry.
[15] I accept that submission. Although the catch-all exception in r 14.7(g) is broad, a good reason is required before departing from the general rule that costs should follow the event. There may be limited circumstances in which a party’s financial circumstances animate the jurisdiction (as for example in Simister v Tauranga Cruise Tourism Operators Association Inc where costs were reduced from $37,081 to $10,000 on the basis that the Association would otherwise go into liquidation which would “not be of benefit to either party”),9 but I would regard such cases as exceptional.
[16] At least within the context of applications by the Crown I do not consider it necessary or desirable for this Court to make (what will always be essentially arbitrary) adjustments to costs awards to reflect financial circumstances and that the Court may fairly look to the Crown to adopt a responsible position in relation to recovery, mindful of the context in which the costs application is made (here a refugee claim).
Result
[17] I award costs against the applicant in the amount of $9,589 plus disbursements of $270 being:
(a) filing fee on notice of opposition – appeal $110
(b) filing fee on notice of opposition – review $110
(c) sealing fee on costs order $ 50
$270
9 Simister v Tauranga Cruise Tourism Operators Association Inc [2015] NZHC 2133 at [16].
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