Je (India) v Immigration and Protection Tribunal

[2021] NZHC 774

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-899

CIV 2020-404-903

[2021] NZHC 774

UNDER THE

Immigration Act 2009 and the Judicial Review Procedure Act 2016

IN THE MATTER OF

Application for leave to bring judicial review proceedings in respect of a decision of the Immigration and Protection Tribunal of New Zealand under ss 245 and 249 of the Immigration Act 2009

BETWEEN

JE (INDIA)

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Second Respondent

Hearing:

On the papers

Appearances:

B Castelino for the Applicant

No appearance for the First Respondent I M G Clarke for the Second Respondent

Judgment:

13 April 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 13 April 2021 at 2:30 pm Pursuant to Rule 11.5 of the High Court Rules

……………

Registrar/Deputy Registrar

JE (INDIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2021] NZHC 774 [13 February 2021]

[1]                 On 4 February 2021, I delivered judgment refusing leave to the applicant to appeal against, or to commence judicial review proceedings of, a decision by Immigration and Protection Tribunal dismissing her appeal against liability for deportation from New Zealand under the Immigration Act 2009.

[2]                 I also determined the respondents were entitled to costs on each application. Unfortunately, counsel have been unable to settle costs.

[3]                 The issue in dispute between the parties turns on the impecuniosity of the applicant. Ms Clarke, for the second respondent, submits costs should follow the event in the usual way. Mr Castelino, for the applicant, asks the Court to exercise its discretion and refuse to award costs. He has filed an affidavit from the applicant. She describes her present personal and financial circumstances and the difficulties she faces in returning to India in the present COVID-19 pandemic emergency.

[4]                 The Court does have a discretion in awarding costs. But it is not unfettered. The costs regime provided for in the High Court Rules must apply unless there is good reason to the contrary. Rule 14.2(1) provides that the unsuccessful party in the proceeding should pay the costs of the successful party. The applicant’s applications were unsuccessful.

[5]                 A reduction in or refusal of costs is dealt with in r 14.7. None of the circumstances listed in sub-rr (a) to (f) apply to her situation. Rule 14.7(g) is a general provision that permits costs to be refused or reduced for some other reason despite the principle that the determination of costs should be “predictable and expeditious”. Personal circumstances, such as financial hardship, do not generally justify a refusal or reduction in costs and are reserved only for exceptional cases.1

[6]                 I acknowledge the applicant’s difficult position, but costs should not be refused to the second respondent. Notwithstanding the applicant’s affidavit, I can see no proper or principled basis on which to refuse costs. This is not an exceptional case.

1      NM (Fiji) v Minister of Immigration [2020] NZHC 2729 at [8]. See also BR (Bangladesh) v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 902 at [6] and HA v Refugee and Protection Officer [2018] NZHC 1011 at [15]–[16].

[7]There is no challenge to the quantum of costs claimed.

[8]Accordingly, I order the applicant to pay to the second respondent costs of

$8,604.00 together with disbursements of $1,402.10.

Campbell J