AR v Immigration and Protection Tribunal

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-003142 [2017] NZHC 2312

UNDER
Section 247 of the Immigration Act 2009

and the Judicature Amendment Act 1972

IN THE MATTER

of the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol

BETWEEN

AR Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

REFUGEE AND PROTECTION OFFICER

Second Respondent

intituling continued over

Hearing: On the papers

Judgment:

22 September 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 22 September 2017 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland.

Copy to: Applicant.

CIV-2015-404-0033143

UNDER Section 245 of the Immigration Act 2009

IN THE MATTER of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol

BETWEEN AR Appellant

ANDREFUGEE AND PROTECTION OFFICER Respondent

[1] Duffy J permitted AR to bring an appeal and a related judicial review proceeding in connection with a decision to decline AR refugee status and protected person status.1 I heard the appeal and judicial review proceeding—and dismissed both.2 The Crown seeks 2B costs in connection with the hearing.

[2] AR acknowledges he was unsuccessful, and so costs would normally be awarded to the Crown. However, he resists costs as the case involved a matter of public interest and he acted reasonably;3 (his) human rights were at stake; and the refugee context favours the exercise of discretion against costs. AR also notes he already faces a costs award in relation to another case (of almost $12,600).

[3] I accept AR acted reasonably, but the case was brought to protect his private interests. True, Duffy J granted leave to allow exploration of credibility assessment in a refugee context, in turn a matter of public interest. However, I concluded that issue was settled at common law. And as observed, AR’s interest was not in the elucidation of principle, but protection of private interests.

[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.4 The fact AR must pay other costs does not affect the calculus either.

[5] Costs on a 2B basis of $14,272 are awarded in favour of the Crown.

……………………………..

Downs J

1      AR v Immigration and Protection Officer [2017] NZHC 132.
2      AR v Immigration and Protection Tribunal [2017] NZHC 2039.
3      High Court Rules 2016, r 14.7(e).
4      RM v Immigration and Protection Tribunal [2016] NZHC 1701.

CaseChat Overview and Summary

AR, an applicant for refugee status, appealed against a decision by the Immigration and Protection Tribunal to deny him refugee status and protected person status. The appeal and related judicial review proceedings were dismissed by Downs J. The Crown sought costs pursuant to the High Court Rules. AR argued against costs on the grounds of public interest, human rights, and the refugee context, which he contended favoured the exercise of discretion against costs. He also noted that he already faced a costs award in relation to another case.

The court considered AR's arguments and found that while he acted reasonably, the case was brought to protect his private interests, not to elucidate principles of public interest. The court held that the issue of credibility assessment in a refugee context had already been settled at common law. The court also noted that there was no authority permitting the refugee context to displace normal costs principles. The court awarded costs on a 2B basis of $14,272 in favour of the Crown.

The court's reasoning was based on the fact that AR's primary interest was in protecting his private interests, rather than elucidating principles of public interest. The court also found that the issue of credibility assessment in a refugee context had already been settled at common law, and that the refugee context did not displace normal costs principles. The court held that AR acted reasonably, but that this did not affect the calculus of costs.

The final orders were that AR's appeal and related judicial review proceedings were dismissed, and that costs on a 2B basis of $14,272 were awarded in favour of the Crown.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Section 247 of the Immigration Act 2009 and the Judicature Amendment Act 1972
IN THE MATTER	of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
BETWEEN	AR Applicant
AND	IMMIGRATION AND PROTECTION TRIBUNAL First Respondent REFUGEE AND PROTECTION OFFICER Second Respondent intituling continued over