AX (Afghanistan) v Immigration and Protection Tribunal
[2018] NZHC 52
•5 February 2018
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-2017-404-1295 CIV-2017-404-1297
[2018] NZHC 52
UNDER the Judicial Review Procedure Act 2016 and the Immigration Act 2009 IN THE MATTER
of applications for leave to appeal and bring judicial review
BETWEEN
AX (AFGHANISTAN)
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent (CIV-2017-404-1297 only)
THE REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 7 November 2017 Appearances:
J Hall for the Applicant
No appearance by or on behalf of the First Respondent J Cassie and E Lay for the Second Respondent
Judgment:
5 February 2018
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me on 5 February 2018 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
AX (AFGHANISTAN) v THE IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 52
[5 February 2018]
[1] In my judgment delivered on 20 November 2017 (reissued on 20 December 2017),1 I dismissed both AX’s application for leave to appeal a decision2 of the Immigration and Protection Tribunal under s 245 of the Immigration Act 2009 and his application for leave to commence judicial review proceedings in relation to the same decision under s 249.3
[2]I reserved costs by way of the following direction:
[84] The parties should endeavour to reach agreement on costs. In the absence of agreement, counsel for the second respondent may file a memorandum within 15 working days of the date of this judgment. Counsel for AX may file a memorandum in response within a further 10 working days. Memoranda should not exceed five pages.
[3] The second respondent failed to comply with this deadline. Counsel instead filed a memorandum on behalf of the second respondent on 22 December 2017 seeking costs and advising that the delay was due to counsel oversight. It is submitted that the applicant has not suffered any prejudice as a result of the delay.
[4] Under r 14.7(f)(i) of the High Court Rules (the Rules), the Court may refuse to make an order for costs or may reduce the costs otherwise payable if the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by failing to comply with a direction of the Court.
[5] In Red Bull New Zealand Ltd v Drink Red Ltd,4 after reviewing several cases under this rule, Brewer J expressed the view that “the failure to comply must unnecessarily contribute to some actual and palpable increase in time or expense”.5 That was a case where the alleged failures to comply with directions occurred prior to the hearing.
[6] In this case, where the failure to comply occurred after the judgment was delivered, it cannot be said that the second respondent has contributed unnecessarily to the time or expense of the proceeding. Nor has the applicant suffered any prejudice.
1 AX (Afghanistan) v Immigration and Protection Tribunal [2017] NZHC 2840.
2 AX [2017] NZIPT 800989.
3 At [81]-[82].
4 Red Bull New Zealand Ltd v Drink Red Ltd [2016] NZHC 1473.
5 At [11].
[7] Accordingly, I will consider the costs application and I will not reduce the costs otherwise payable on this basis.
[8] In a joint memorandum dated 21 July 2017 filed for the purposes of a case management conference, the parties agreed that the proceeding be categorised as 2B for the purposes of costs. No order was made by the Court at the time. I agree that 2B is the appropriate classification.
Submissions
[9] The second respondent submits costs should be awarded as there is nothing particularly unique about the immigration context that suggests the Crown is not entitled to costs. It cites two previous immigration cases where the Crown was granted costs.6
[10] The second respondent seeks an order for costs and disbursements on a category 2B basis of $12,593.82 as follows:
Item Description Daily Rate Number of Days Total 10 Preparation for first case management conference $2,230.00 0.4 $892.00 11 Filing memorandum for first case management conference $2,230.00 0.4 $892.00 11 Filing memorandum in respect of application for transcript of
proceedings
$2,230.00 0.4 $892.00 11 Filing memorandum in respect of filing of amended statement of claim $2,230.00 0.4 $892.00 $3,568.00 23 Filing opposition to
interlocutory application for leave to appeal
$2,230.00 0.6 $1,338.00 23 Filing opposition to
interlocutory application for leave to judicially review
$2,230.00 0.6 $1,338.00 24 Preparation of written submissions $2,230.00 1.5 $3,345.00 25 Preparation by second respondent of bundle of authorities $2,230.00 0.6 $1,338.00 26 Appearance at hearing of
defended application for sole or principal counsel
$2,230.00 0.5 $1,115.00 $8,474.00 $12,042.00
6 Guo v Immigration and Protection Tribunal [2014] NZHC 804; Nabou v Minister of Immigration
[2013] NZHC 2112.
Disbursements Total Air travel $272.16 Court filing fees – notice of
opposition
$191.30 Courier fees $16.38 GST $71.98 Total $551.82
[11] Mr Hall, on behalf of the applicant, submits that costs ought not to be awarded in this instance as refugee and protection matters are in the public interest. He relies on r 14.7(e) of the Rules, which provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.
[12] The applicant also relies on r 14.7(g), which provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious. The reason in this case, Mr Hall submits, is that the applicant has no income, New Zealand assets or accessible worldwide assets. It would put him at hardship to grant costs against him.
[13]Lastly, the applicant argues the following:
5.The United Nations High Commissioner for Refugees has published Global Consultations on International Protection of Asylum Seekers including recommendation on standards of treatment. Recommendation 25 (e) affirms that asylum seekers should have access to legal assistance. Recommendation 25 (b) states that needy asylum-seekers should be given all necessary support.
6.Article 31 of the Refugee Convention also requires that states shall not impose penalties on refugees on account of their illegal presence in a country. It is submitted that the imposition of costs against unsuccessful refugee applicants are a penalty on account of what the Court eventually finds to be their illegal presence.
(Citations omitted)
Principles
[14] Costs are at the discretion of the Court.7 The Rules provide guidance as to how the discretion might be exercised.8
[15] Ultimately, the general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.9
[16]Disbursements may also be claimed. Rule 14.12(1) defines a disbursement:
(1)In this rule,—
disbursement, in relation to a proceeding,—
(a)means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and
(b)includes—
(i)fees of court for the proceeding:
(ii)expenses of serving documents for the purposes of the proceeding:
(iii)expenses of photocopying documents required by these rules or by a direction of the court:
(iv)expenses of conducting a conference by telephone or video link; but
(c)does not include counsel’s fee.
[17] To be recoverable as a disbursement, an item must both satisfy the definition in r 14.12(1) and meet the requirements in r 14.12(2):
(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—
(a)of a class that is either—
(i)approved by the court for the purposes of the proceeding; or
(ii)specified in paragraph (b) of subclause (1); and
(b)specific to the conduct of the proceeding; and
(c)reasonably necessary for the conduct of the proceeding; and
(d)reasonable in amount.
[18] Despite r 14.12(2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.10
7 High Court Rules, r 14.1(1).
8 Rules 14.2-14.7.
9 Rule 14.2(1)(a).
10 Rule 14.12(3).
Decision
Costs
[19] There is a high threshold that must be met for the public interest exception under r 14.7(e) to be engaged.11
[20] After examining several cases under r 14.7(e), Heath J identified the “dual need for the Court to be satisfied that the unsuccessful litigant has acted reasonably in the conduct of the proceeding and that a private interest is not being dressed up as a public one”.12 In Taylor v District Court at North Shore, White J also commented on the requirements:13
[9] … the proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant …
[21] Here, it cannot be said that these requirements are satisfied. This proceeding did not concern a matter of genuine public interest. AX’s applications did not have serious merit and the case does not have any other general importance beyond his interests. The comments of Palmer J in RM v Immigration and Protection Tribunal are similarly applicable here:14
[5] … While [the applicants] acted reasonably in the conduct of the proceedings, the proceeding was essentially one pursued in the applicants' private interests …
[22] Duffy J later reiterated these comments in AR v Immigration and Protection Officer:15
[15] … While the outcome may have wider implications beyond the individual claimant, it cannot be characterised as an action brought “without hope of any personal gain or advantage, but purely out of the concern for the welfare of the general public” …
11 Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2100 at [8].
12 New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993 at [10].
13 Taylor v District Court at North Shore HC Auckland CIV-2009-404-2350, 13 October 2010.
14 RM v Immigration and Protection Tribunal [2016] NZHC 1701. See also AR v Immigration and Protection Tribunal [2017] NZHC 2312 at [3]-[4].
15 AR v Immigration and Protection Officer [2017] NZHC 978.
[23] Therefore, I do not refuse to make an order for costs or reduce costs on this basis.
[24] Turning to the submission made in reliance on r 14.7(g) based on financial hardship, White J in Taylor also commented on the applicability of r 14.7(g):16
[10] The “catch-all” exception in rule 14.7(g) is broad, but requires identification of a good reason for departing from the general rule that costs should follow the event. Examples may include habeas corpus applications and claims under the New Zealand Bill of Rights Act 1990 …
[25] Financial hardship is a relevant factor which may be taken into account. But it is not an answer to a claim for a costs award.17 As Dunningham J has stated:18
[16] I also accept, as submitted by TBFree, that impecuniosity is not “an answer” to a claim for a costs award. A costs award should be made at a meaningful level, even against an impecunious party, when that party has advanced a case which is poorly pleaded or lacking in merit, as I have found was the case in these appeals[.]
(Citations omitted)
[26] There is no affidavit or other evidence as to AX’s financial status or his ability to meet a costs award. There is, therefore, no principled basis upon which to refuse or reduce the costs award under this rule.
[27] Lastly, the international conventions cited by the applicant do not have any relevance to this costs decision. The recommendations in the Global Consultations on International Protection of Asylum Seekers have not been breached. AX has had access to legal assistance. He has not complained about any support given.
[28] Further, art 31(1) of the Refugee Convention does not apply to AX. Article 31(1) provides as follows:
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization,
16 Taylor v District Court at North Shore, above n 13.
17 Craig v Keith [2017] NZHC 2664 at [23].
18 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969.
provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
[29] The Immigration and Protection Tribunal found that AX did not satisfy the definition of a “refugee” under art 1A(2) of the Refugee Convention.19 It could not be said on the evidence that AX had a well-founded fear of being persecuted in each of the countries of which he is a national. On that basis, art 31(1) does not apply to AX.
Disbursements
[30] The second respondent has not provided any reason for the air travel. It is simply a bare claim for that purpose. I disallow the expense related to air travel on the basis that it lacks the necessary specificity and does not fulfil the test in r 14.12(2)(b) and (c).
[31] In terms of the other disbursements, I am satisfied that the expenses claimed fall within the definition of a disbursement and meet the test under r 14.12(2).
Conclusion
[32] The second respondent is, therefore, entitled to total costs and disbursements of $12,321.66. I make an order accordingly.
Gordon J
19 AX, above n 2, at [73].
1
10
0