Ly v Minister of Immigration HC Auckland CIV-2011-404-001540

[2011] NZHC 593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-001540

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an application for judicial review

BETWEEN  SOKNENG LY Applicant

ANDMINISTER OF IMMIGRATION Respondent

Hearing:         On the Papers

Counsel:         T Shah for Applicant

A Longdill for Respondent

Judgment:      20 June 2011

JUDGMENT OF WHATA J ON COSTS

This judgment was delivered by Justice Whata on

20 June 2011 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Alastair McLymont, PO Box 8727, Symonds Street, Auckland

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

E Orlov, DX CX 10246, Auckland 1150

T Shah, PO Box 8333, Symonds Street, Auckland 1150

LY V MINISTER OF IMMIGRATION HC AK CIV-2011-404-001540 20 June 2011

[1]      In accordance with my directions, counsel have filed memoranda in relation to costs.

[2]      The respondent, having succeeded in defending the application to file out of time, has sought costs on a 2B basis and in the ordinary way.   Those costs total

$4,324.

[3]      The applicant opposes costs on the basis that she faces the prospect of being removed from the country as she is in New Zealand unlawfully and if costs are awarded against her, they will add to her stress and suffering in an already difficult situation.   Her counsel also says that the issues raised in this case concern fundamental human rights and the rights of the child.

Discussion

[4]      The  Crown  is  correct  that  ordinarily  costs  follow  the  event.     I  have considered  whether  the  public  interest  considerations  in  this  case  place  it  in  a different category.  Certainly this case was the first, or one of the first cases dealing with the new Immigration Act and an application for leave out of time.   To that extent it raised public interest considerations that take it out of the ordinary.  I would add further that, while the applicant was not successful, the facts were somewhat unusual with notice of the decision falling over the holiday period and the late notice being given directly to the applicant.  The case did also call for consideration of the relevance of the rights of the child in this context.

[5]      Balanced against this, the applicant was unlawfully resident in New Zealand for some time.  This Court cannot be seen to be condoning such unlawful activity in any way.  The Crown has been put to the expense of exercising its statutory function for the purposes of maintenance of immigration law.

[6]      In  these  circumstances,while  there  are  public  interest  considerations  and unusual facts, they are not such as to overide the concern that I should not be seen to condone obvious illegality, I propose to grant costs in favour of the Crown.  Nor is

there any evidence before me of undue hardship that might arise out of a costs order that might militate against costs being granted.

[7]      Orders as sought by the Crown accordingly.

Whata J