HG (India) v Refugee and Protection Officer

[2020] NZHC 1311

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1396

CIV-2019-404-1434 [2020] NZHC 1311

UNDER

Sections 245 and 249 of the Immigration Act 2009

BETWEEN

HG (INDIA)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent (CIV-2019-404-1396)
First respondent (CIV-2019-404-1434)

AND

IMMIGRATION AND PROTECTION TRIBUNAL

Second respondent (CIV-2019-404-1434)

Continued overleaf

Teleconference:

11 June 2020

Counsel:

T Mukusha and M Zhou for the applicants

M Deligiannis for the Refugee and Protection Officer

Date of minute:

12 June 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Friday 12 June 2020 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

HG (INDIA) v REFUGEE AND PROTECTION OFFICER [2020] NZHC 1311 [12 June 2020]

CIV-2019-404-1479 CIV-2019-404-1480

UNDERSections 245 and 249 of the Immigration Act 2009

BETWEEN  CY (BANGLADESH)

Applicant

AND  REFUGEE AND PROTECTION OFFICER

First respondent

ANDIMMIGRATION AND PROTECTION TRIBUNAL

Second respondent

CIV-2019-404-1757 CIV-2019-404-1758

UNDERSections 245 and 249 of the Immigration Act 2009

BETWEEN  HN (INDIA)

Applicant

ANDIMMIGRATION AND PROTECTION TRIBUNAL

First respondent

AND  REFUGEE AND PROTECTION OFFICER

Second respondent

Counsel/Solicitors:

I C Carter, Barrister, Wellington Senthil and Mukusha, Auckland Crown Law, Wellington

What happened

[1]                 In these three sets of proceedings, applicants for refugee or protected person status sought leave to judicially review, and to appeal, decisions by the Immigration and Protection Tribunal declining them that status. The applications were scheduled for half- day hearings, on 3, 5 and 11 December 2019.

[2]                 On 25 November 2019, after the Refugee and Protection Officer had prepared submissions in the first case, the applicants discontinued their applications and the fixtures were vacated. They decided, instead, to make fresh applications for refugee or protected person status. The applicants’ counsel, who were the same for all proceedings, say they advised the applicants that their chances of success were lower in the High Court proceedings.

Submissions on costs

[3]                 The Refugee and Protection Officers seek scale costs for the discontinued proceedings of $9,520.75, $2,585.25 and $2,485.65. I assume that the costs sought do not exceed the costs actually spent by the Crown, in accordance with r 14.2(1)(f). Otherwise, the Crown will be entitled only to the actual amount.

[4]                 Ms Deligiannis, on the respondents’ behalf, advises that if any applicant’s subsequent claim for refugee or protected person status is meritorious, any costs awarded against that applicant would not be pursued. Enforcement of a costs award will only be pursued if the relevant application is not a legitimate one. She submits that the Court does not need to make a contingent order as I can rely on Immigration New Zealand not to enforce a costs award in that circumstance. Otherwise, a payment plan could be negotiated. She submits it is important for the Crown’s position on such claims to be stated.

[5]                 Mr Mukusha, for the applicants, submits the applicants do not oppose the costs orders sought. But he does say they do not have any means whatsoever to pay the orders if enforcement is pursued.

Decision on costs

[6]                 Rule 15.23 of the High Court Rules 2016 provides that “[u]nless 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”.

[7]                 This reflects the function of the costs regime in giving litigants incentives to bring and defend litigation according to the expected merits of their cases.1 They should pursue meritorious cases and should not pursue unmeritorious cases. The Crown’s point in seeking costs here is that that applies to cases about refugee status as much as it does to any other cases. The rule also reflects the fact that the respondents and the courts have been put to time and cost in responding to the case and holding hearing time available.

[8]                 In each of these three sets of proceedings, the parties agreed that costs would be calculated on a 2B basis and the Court made directions accordingly. In discontinuing their applications, the applicants responsibly acknowledge they are open to costs awards. The costs would have been higher if they had continued to pursue the applications and failed. In undertaking not to enforce costs award if the new applications for refugee and protected persons status are meritorious, the Crown responsibly acknowledges the wider context of the proceedings. Accordingly, by consent, I award costs to the respondents in these proceedings for the amounts sought, or for the amounts of actual costs expended in each set of proceedings, whichever is the lesser.

Palmer J

1      Stringer v Craig (No 4) [2020] NZHC 1021 at [1] and [5].