Chan v Deputy Chief Executive, Immigration Group, Ministry of Business Innovation and Employment

[2012] NZHC 2236

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4039 [2012] NZHC 2236

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an application for Judicial Review

BETWEEN  CHOONG AH CHAN Plaintiff

ANDDEPUTY CHIEF EXECUTIVE, IMMIGRATION GROUP, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT

Defendant

Hearing:         29 August 2012

Counsel:         A Longdill on behalf of the Applicant/Defendant

S L Laurent on behalf of the Plaintiff/Respondent

Judgment:      31 August 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 31 August 2012 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Laurent Law, 93 Dominion Road, Mt Eden, Auckland 1024

CHAN V DEPUTY CHIEF EXECUTIVE HC AK CIV-2012-404-4039 [31 August 2012]

[1]      Choong Ah  Chan  is  a  Malaysian  national  who,  while  in  New  Zealand, applied for a work visa on the grounds that her partner was a New Zealand resident. That application was declined on 26 April 2012.   Ms Chan then resorted to the internal Immigration New Zealand (“INZ”) complaint procedures in an attempt to have  that  decision  reviewed  or  overturned.    Her  complaint  was  dismissed  on

12 July 2012.

[2]      Ms Chan then filed these judicial review proceedings challenging that 12 July decision.  She was, by that time, time barred from challenging the earlier decision by s 247(1) of the Immigration Act 2009.

[3]      When these proceedings were first filed, the respondent undertook not to deport Ms Chan pending the judgment of this Court.   No interim orders were therefore required.

[4]      Following the giving of that undertaking and the first call of the matter on

25 July,  however,  Ms  Chan  departed  New  Zealand  voluntarily  and  returned  to

Malaysia.  She wishes, however, to return.

[5]      On  17 August  2012,  the  defendant  applied  for  $5000  security  for  costs pursuant to r 5.45, on the basis that:

(a)       Ms Chan is resident outside New Zealand; and

(b)      There  is  reason  to  believe  that  she  will  be  unable  to  pay  the

defendant’s costs if the application for review is dismissed.

[6]      Ms  Chan  has  accepted  that  security  should  be  ordered  but  opposes  the quantum sought.  She has proposed to pay $2,500.  What amount should be ordered is the only issue requiring determination by me.

[7]      Ms Longdill advised that an award of 2B costs in relation to a half day hearing (which has been allocated for 31 October 2012) would amount to a little over $20,000.  She acknowledged, however, that the Court of Appeal has said:[1]

[1] A S McLachlan Ltd v M E L Network Ltd (2002) 16 PRNZ 747.

[27]      The amount of security is not necessarily to be fixed by reference to likely cost awards ... It is rather to be what the Court thinks fit in all the circumstances.

[8]      Ms Longdill said that, for that reason, the defendant does not seek security in the amount of $20,000 or, indeed, anything approaching that amount.  She submitted that $5000 was an appropriate sum, taking as a relevant benchmark particularly the recent decision in Ibrahim v Associate Minister of Immigration, where security in that amount was ordered.[2]

[2] Ibrahim v Associate Minister of Immigration HC Wellington CIV-2011-485-1142, 18 October 2011.

[9]      As both counsel noted MacKenzie J’s decision in Ibrahim has been appealed to the Court of Appeal.  Of note in that context is the (even more recent) decision of that Court reducing the security otherwise payable on the appeal from $5,560 to

$1,390.[3]    In his judgment on the review of the Registrar’s decision not to dispense

[3] Ibrahim v Associate Minister of Immigration [2012] NZCA 229.

with security, Arnold J canvassed the relevant authorities which confirm that orders for security are appropriate in cases such as the present.   In that case, Arnold J reduced the security amount principally on account of Mr Ibrahim’s impecuniosity. Mr Ibrahim is an Ethiopian national who is presently living in Egypt.   Because Mr Ibrahim is now resident overseas he was ineligible for Legal Aid.

[10]     Mr Laurent’s contention that a lesser amount of security should be ordered

was supported by the following submissions:

(a)       Ms Chan (or alternatively her New Zealand partner) is able to meet any order of costs against her; she has paid the setting down fee and is

willing and able to pay $2500;

(b)the concept  of security is  intended  to  import  only a  modicum  of comfort, or limited protection, not a complete immunity from the risk of an unsuccessful plaintiff being unable to meet a costs award; and

(c)      Compared with that of Mr Ibrahim, Ms Chan’s case was a relatively simple one.  Only half a day was required for the hearing.  Moreover, due to Mr Ibrahim’s country of origin and his admitted lack of funds, the Crown purse was more at risk in that case than it is here.

[11]     As to the first matter, there is no real evidence of Ms Chan’s ability to meet any costs award.  While I accept that it is unlikely that she is in a position similar to that of Mr Ibrahim, the evidence filed on behalf of the defendant suggests that her immediate means were modest when she arrived in New Zealand (she had funds of

$6000) and it is unclear to what extent she is being, or will continue to be, supported and/or funded by her partner.

[12]     Although I necessarily accept the second submission, it ultimately fails to answer the question of what is appropriate in the present case.  And it is difficult to regard as inappropriate a sum by way of security that amounts to only a quarter of the likely scale costs in the event of success.

[13]      Lastly,  while  it  may be  true  that  there  are  relevant  differences  between Mr Ibrahim’s circumstances and Ms Chan’s I also note Ms Longdill’s submissions that the defendant’s claim is far from straightforward.  Regardless of the merits of the 26 July decision (about which I am not in a position to comment), the Crown’s position is that that decision is not one which is susceptible to judicial review at all. As I understand it, that submission will not be based on the proposition that the defendant was not performing statutory functions.  Rather, the proposition is that the Immigration Act 2009 tightly circumscribes the ability judicially to review decisions made under it and that to permit applications such as the present would circumvent or undermine (for example) the tight time limits that Parliament has imposed in that regard.

[14]     Be that as it may, however, and looking at the matter robustly and in the round I am satisfied that the $5000 sought by the defendant is appropriate in this case.   Ms Chan is in Malaysia.   Her means are uncertain.   There is likely to be considerable cost and difficulty associated with enforcing any costs award against her, should that become necessary.

[15]     Accordingly, I direct that Ms Chan is to pay into Court security in the sum of

$5000.   Payment is to be made within 10 working days of this judgment.   In the event that that does not occur the proceeding will be stayed until payment is made,

without further order of the Court.

Rebecca Ellis J