AP (Ethiopia) v Refugee and Protection Officer

[2020] NZHC 214

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1597

[2020] NZHC 214

BETWEEN

AP (ETHIOPIA)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Continued …

Hearing:

On the papers

Appearances:

Applicant in person

Ms E Mok for the First Respondent in CIV-2019-404-1597 and Respondent in CIV-2019-404-1598

Judgment:

19 February 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 19 February 2020 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

AP (ETHIOPIA) v REFUGEE AND PROTECTION OFFICER [2020] NZHC 214 [19 February 2020]

Continued …

CIV-2019-404-1598

BETWEEN

AP (ETHIOPIA)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

[1]    AP applied for leave to appeal and to bring judicial review proceedings in relation to a decision of the Immigration and Protection Tribunal declining his refugee and protected person appeal.

[2]    A half day hearing was allocated for 12 December 2019. On 2 December 2019 AP advised that he had decided to withdraw his applications. The fixture was vacated.

[3]    The refugee and protection officer (the RPO), seeks costs on a 2B basis in accordance with rr 14.2 and 14.3 of the High Court Rules 2016.  The RPO relies on  r 15.23 which provides that:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[4]    By consent, Palmer J had earlier ordered that the applications are categorised as 2B for costs purposes.

[5]    The RPO claims that costs on a 2B basis  for the steps  taken  total  $4,302 but seeks its lower actual costs of $3,313 (excluding GST) plus disbursements of

$234.78 (excluding GST).

[6]    AP has explained that he withdrew because he could not afford a lawyer, and the costs sought exceed the costs he would have incurred. He says that as he is on an interim visa, it is very difficult to get a job. His financial situation is poor, and he struggles to cover his living costs and those of his family (a wife and two daughters who depend on him in Ethiopia), the cost of the legal advice he did incur, and his other commitments.

[7]    The r 15.23 presumption in favour of awarding costs to a defendant against whom a proceeding has been discontinued may be displaced if there are just and equitable circumstances not to apply it.1 The Court does not lightly allow a plaintiff to displace the presumption, but the Court is prepared, in a clear case, to recognise that

1      Kroma Colour Prints Ltd v Tridonicato NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 at [12].

the plaintiff may have  discontinued  for  reasons  not  connected  to  the  merits.2  The Court’s general discretion in relation to costs in r 14.1 can also override the cost principles relating to discontinuance.

[8]    There is no issue with the reasonableness of the RPOs’ costs. But I consider that costs should be reduced in the circumstances of this case, for two reasons.

[9]    First, even applying the cost principles relating to discontinuance, AP’s explanation that he withdrew the applications because he could not afford a lawyer is not disputed. It is understandable if he felt he could not represent himself at the hearing in this Court. His financial situation is also unsurprising in the circumstances.

[10]   Secondly, applications for leave to challenge a decision declining refugee and protected person status are not normal civil proceedings. The Crown and government agencies are entitled to apply for costs in the same way as other litigants, but here the rpo is defending a challenge to a decision to decline refugee or protected person status in accordance with New Zealand’s international human rights obligations. Without suggesting there should be a different approach to costs in all such cases, as there may be with challenges under the New Zealand Bill of Rights Act 1990 so as not to discourage them,3 I consider the Court’s general discretion in relation to costs in r 14.1 extends to reducing or not awarding costs in such cases. While the presumption in relation to discontinuance aids certainty and may discourage hopeless applications, applicants in AP’s position should not be discouraged from discontinuing such applications before hearing either.  Such proceedings generally tend to be pursued to a hearing whether or not they have merit.

[11]   Balancing these factors in the circumstances of this case, I consider the costs awarded should be reduced to the modest amount of $750.

2      Powell v Hally Labels Ltd [2014] NZCA 572 at [20]–[24].

3      Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].

Result

[12]The first respondent is awarded costs of $750 plus the disbursements claimed.

Gault J

Parties / Solicitors:

The Applicant

Ms E Mok, Meredith Connell, Office of the Crown Solicitor, Auckland