Nabou v Minister of Immigration

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4215 [2013] NZHC 2112

UNDER Immigration Act 2009

IN THE MATTER OF an application for leave to appeal a
decision of the Immigration and Protection Tribunal pursuant to s 245 of the Immigration Act 2009

BETWEEN ALIPATE JORRIS LOLOMA NABOU Applicant

ANDMINISTER OF IMMIGRATION Respondent

Hearing: On the papers

Counsel: TM Saseve for Applicant
C Griffin for Respondent

Judgment: 19 August 2013

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 20 August 2013 at 1:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Law Office, Wellington
Saseve Lawyers, Auckland

NABOU v MINISTER OF IMMIGRATION [2013] NZHC 2112 [19 AUGUST 2013]

[1] Mr Nabou is an immigrant from Fiji who held a New Zealand residence permit. On 17 August 2010 the Minister of Immigration ordered that Mr Nabou be deported[1] as a result of his having been convicted of criminal offences involving violence or threats of violence, on two separate occasions, against a woman he was in a relationship with. Mr Nabou was sentenced to 12 months’ imprisonment on three of the charges.

[1] Issued by the Minister of Immigration on 17 August 2010 pursuant to s 91(1)(b) of the

Immigration Act 1987 (now repealed).

[2] The Immigration and Protection Tribunal (“Tribunal”) dismissed his appeal against the Minister’s decision. It found that it was not unjust or unduly harsh to deport Mr Nabou, and confirmed the deportation order.[2]

[2] Nabou v Minister of Immigration [2012] NZIPT 500093, 25 June 2012.

[3] Mr Nabou sought leave to appeal the Tribunal’s decision on questions of law,

pursuant to s 245 of the Immigration Act 2009. In a judgment dated 17 December

2012 I declined Mr Nabou’s application for leave to appeal.[3] Mr Nabou has not sought to appeal that decision. The time for filing an application for leave to appeal to the Court of Appeal expired on 5 February 2013.

[3] Nabou v Minister of Immigration [2012] NZHC 3365.

[4] The respondent now seeks costs and disbursements on a category 2B basis,

but reduced to reflect the respondent’s actual costs. The total amount sought is

$7,228.87. Costs on a category 2B basis would amount to $8,922.61.

[5] Mr Nabou has not made any submissions on the issue of costs. His solicitor has advised that he has received no response to correspondence sent to Mr Nabou’s email address or to his last known address. Given that Mr Nabou’s application for leave was declined, he should have now left New Zealand in any event, although I
am not aware if he has in fact done so.

[6] Rule 14.1 confers a general discretion on the Court to award costs. That discretion is not unfettered and should be exercised in accordance with the general scheme of Part 14, particularly rr 14.2 to 14.10.[4] The general principle is that costs follow the event, and that the losing party should make a reasonable contribution to the costs of the successful party.

[4] Refer Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [24].

[7] Mr Nabou’s application for leave to appeal was unsuccessful. I see no reason to depart from the usual practice that costs follow the event on the facts of this case. There does not appear to be any public interest or other countervailing considerations that would weigh against an award of costs being made in favour of the respondent.

[8] Costs calculated on a 2B basis would amount to $8,922.61. However, such costs would exceed the respondent’s actual costs (as billed by Crown Law to the Minister of Immigration). Accordingly, the costs award will be reduced to reflect the respondent’s actual costs. As set out in the schedule to the respondent’s memorandum, costs are awarded to the respondent in the sum of $5,362.40 together with disbursements in the sum of $923.57 and GST on those sums of $942.90. The
total award is therefore $7,228.87.

Katz J

The High Court of New Zealand considered the case of Nabou v Minister of Immigration, where the applicant, Mr Nabou, a resident permit holder from Fiji, sought leave to appeal a decision by the Immigration and Protection Tribunal upholding a deportation order issued by the Minister of Immigration. Mr Nabou's deportation was due to two criminal convictions involving violence or threats of violence against a woman he was in a relationship with. After serving a 12-month imprisonment sentence for three charges, the Tribunal dismissed his appeal against the deportation order, finding it neither unjust nor unduly harsh. The Court, in a previous judgment, had also declined Mr Nabou's application for leave to appeal, a decision he did not challenge. The Minister of Immigration now seeks costs and disbursements for the proceedings.

The legal issues before the Court included whether the Minister was entitled to costs under the High Court Rules, given that Mr Nabou's application for leave to appeal was unsuccessful, and if so, in what amount. The Court considered the general principle that costs follow the event, meaning that the unsuccessful party should contribute to the costs of the successful party. The Court also noted the absence of any countervailing considerations that would prevent the awarding of costs to the Minister.

In its judgment, the Court exercised its discretion under Rule 14.1 of the High Court Rules and awarded costs to the Minister. While the usual practice would award costs calculated on a category 2B basis, amounting to $8,922.61, the Court reduced the amount to reflect the Minister's actual costs, which were $5,362.40, plus disbursements of $923.57 and GST of $942.90, totaling $7,228.87. Mr Nabou had not responded to the issue of costs, and there was no indication he remained in New Zealand.

The Court concluded that the Minister of Immigration was entitled to costs in the sum of $7,228.87, reflecting a reduction from the category 2B basis to the actual costs incurred.

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