Fang v Ministry of Business, Innovation and Employment

[2018] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002453

[2018] NZHC 611

UNDER

The Judicial Review Procedure Act 2016, Judicature Amendment Act 1972, Part 30 of the High Court Rules, Declaratory
Judgments Act 1908 and the New Zealand Bill of Rights Act 1990

IN THE MATTER

Of an application for judicial review, extraordinary remedies, interim relief,

declaratory remedy and claim for breach of rights

BETWEEN

MINGBO FANG

Applicant

AND

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:

On the papers

Counsel:

D Zhang for Applicant

I C Carter for Respondent

Judgment:

6 April 2018

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 6 April 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:

Amicus Law, Auckland Crown Law, Wellington

FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 611 [6 April 2018]

[1]    Mr Fang was deported on 26 January 2018. Prior to his deportation, Mr Fang commenced judicial review proceedings seeking to review an alleged decision made by Immigration New Zealand (INZ) to refuse to reconsider whether Mr Fang’s deportation order should be cancelled pursuant to s 177 of the Immigration Act 2009. This alleged decision is purportedly recorded  in  a  letter  dated  9  October 2017. Mr Fang sought a declaration that the decision was unlawful and unreasonable. But INZ wrote to Mr Fang on 29 November 2017 stating that a further decision as to whether to cancel his deportation would be made prior to any deportation. Therefore, assuming the 9 October letter recorded an unlawful decision, it had no material effect as at 29 November 2017.

[2]    Unsurprisingly, given these background facts, interim orders were refused by Downs J. The matter then came before me, even though Mr Fang had been re- interviewed, as promised, prior to his deportation. I signalled to Mr Fang’s counsel that his application had little prospect of success. Mr Fang then discontinued the proceeding.

[3]The respondent now seeks costs on an increased or indemnity basis.

[4]In a lengthy memorandum, Mr Zhang, for Mr Fang, submits in summary:

(a)Any decision on costs should be understood in the broader context, including the fact that Mr Fang succeeded in an appeal of previous judicial review proceedings.

(b)He pursued his present application in good faith and on the basis, in short, that INZ had pre-determined to deport him.

(c)He sought to settle the matter by letter dated 26 January 2018, noting that Mr Fang was prepared to withdraw his judicial review application because, among other reasons, an interview was being offered to him, as had been sought by Mr Fang.

(d)The proceedings concerned matters of public interest, namely, the right to an ROPC interview.

(e)His claim was not completely hopeless because:

(i)There was some uncertainty as to whether a second interview would be offered;

(ii)Mr Fang believed that INZ’s offer on 29 November 2017 was window dressing;

(iii)INZ’s letter demanding a discontinuance on 1 February 2018, without prejudice save as to costs, was not in fact an offer – it was little more than INZ putting to Mr Fang that his case was hopeless; and

(iv)There was no flagrant misconduct by Mr Fang.

(f)A costs order may preclude Mr Fang from being able to return to New Zealand.

[5]    Mr Zhang also submits that if I accept that increased costs should be awarded, the quantum should be reasonable in the circumstances.

[6]    MBIE seeks indemnity costs on the basis that Mr Fang acted unnecessarily in bringing the proceedings and pursuing them to a hearing. Failing that, increased costs

– a 50 per cent uplift on a 2B basis – is sought.

[7]It is submitted, in short:

(a)Mr Fang’s claim was hopeless as it was brutally clear that INZ would give an opportunity for Mr Fang to provide updated information prior to his deportation – this being the central purpose and complaint raised by the proceedings.

(b)To the extent there was any doubt about this, it was explicitly mentioned in the 29 November letter from INZ which states that any updated information would be considered prior to any deportation.

(c)Mr Fang’s overstaying was flagrant.

Assessment

[8]    Plainly, MBIE is entitled to costs. It effectively succeeded at every step. The claim as initially filed was not completely without merit. Mr Fang’s concern about ‘fait accompli’ decision making was, in part, understandable (though not meritorious) given the wider background. But, from 29 November 2017, Mr Fang’s case was very weak and from the further interview, bound to fail.

[9]On that basis:

(a)MBIE is entitled  to  its  costs  on  a  2B  basis  for  all  steps  up  to  29 November 2017; and

(b)Increased costs of 50 per cent from 29 November 2017.

[10]   I refuse increased costs before 29 November 2017 and indemnity costs from that date because of the vulnerability of persons in Mr Fang’s position and the importance of not unduly discouraging such persons from commencing proceedings relating to their ability to reside in New Zealand. What appears hopeless may, on closer scrutiny, prove not so. Here, however, closer scrutiny did not improve Mr Fang’s position and his failure to acknowledge the inherent weakness of his case caused unnecessary cost.

[11]For completeness:

(a)Mr Fang’s offer to withdraw in January 2018 does not mitigate the egregiousness of his position. It was effectively an offer subject to terms, including a costs payment of $3,000 and an extension of time for counsel to prepare for an interview.

(b)I am not prepared to speculate on whether Mr Fang will be inhibited on re-entry by the costs order.

[12]   There shall accordingly be a costs order in favour of MBIE. If not agreed, quantum is to be fixed by the Registrar.