Ning v Minister of Immigration

[2016] NZHC 1856

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2173 [2016] NZHC 1856

UNDER	The Judicature Amendment Act 1972
BETWEEN	FEIFEI NING Applicant
AND	MINISTER OF IMMIGRATION Respondent

On the papers
Judgment:	10 August 2016

JUDGMENT AS TO COSTS OF THOMAS J

This judgment was delivered by me on 10 August 2016 at 4.45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Woodroffe Lawyers, Auckland. Crown Law, Wellington.

FEIFEI NING v MINISTER OF IMMIGRATION [2016] NZHC 1856 [10 August 2016]

[1]      By my Judgment dated 16 April 2016, I dismissed Ms Ning’s application for judicial review of a decision of the delegated decision maker of the Minister of Immigration under s 72 Immigration Act 2009 (the Act).  The respondent now seeks costs.

Background

[2]      The  applicant  requested  the  Minister  of  Immigration  to  make  a  special direction under the Act to grant her a resident visa to allow her to stay in New Zealand with her son, a New Zealand citizen.   Her request was declined.   That decision was made by the respondent’s delegated decision maker in his absolute discretion, as defined under s 11 of the Act.

[3]      The applicant sought to review that decision, on the grounds that it was invalid or a nullity, took into account irrelevant considerations, failed to take into account relevant considerations, and that it was unreasonable.  She also sought name suppression of her child, herself and her estranged husband.

[4]      I found there was no basis on which the decision could be considered a nullity; no basis on which to find that an irrelevant consideration was taken into account; all relevant considerations were before the decision maker and the only reasonable inference was that he took those matters into account.  Furthermore, the fact that the decision maker did not defer to the Family Court’s view as to the best interests of the child was not unreasonable.  Although a reasonable decision maker might have come to a different decision, I concluded that the argument for Ms Ning being granted a residency visa was not so compelling that the refusal to grant her one was necessarily unreasonably, and Ms Ning’s case did not meet the Wednesbury unreasonableness test.

[5]      I also found there were no compelling reasons to justify name suppression.

[6]      The respondent applies for costs on the basis that costs should follow the event and this same starting point applies in public law cases as well as in other civil litigation.

[7]      Ms Ning does not dispute the categorisation and time band sought by the respondent (2B in the main) but seeks a refusal and/or reduction of costs on the grounds:

(a)       The proceeding concerned a matter of public interest and Ms Ning acted reasonably in the conduct of the proceeding; and/or

(b)Some other reason exists which justifies the Court refusing costs or reducing them.

Principles

[8]      The principles applying to the award of costs are well settled.  These are set out at rules 14.1-14.7 of the Rules.   The starting point in an award of costs is contained in r 14.2(a), which provides that in any proceeding, the unsuccessful party should generally pay costs to the successful party.   In accordance with r 14.2, the determination of costs should be predictable and expeditious.

[9]      Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if the circumstances in r

14.7 are met.  Rule 14.7 deals with the refusal of, or reduction in, costs.  Rule 14.7 relevantly provides:

14.7 Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

…

(a)       the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

…

(g)       some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious

Analysis

[10]     Ms  Woodroffe,  counsel  for  Ms  Ning,  submits  that  this  case  could  be considered one where the law was clarified and the case was otherwise of public importance.  I consider each basis for that submission in the following paragraphs.

[11]     Ms  Woodroffe  says  that  no  case  had  previously  examined  the  absolute discretion of the Minister in the context of s 72(3).  While that might be the case, my decision also said that there was nothing in that section which suggested there would be a different approach to reviewing the absolute discretion of the decision maker from the guidance provided in recent Court of Appeal decisions, in respect of other sections of the Act.

[12]     Ms Woodroffe refers to the fact that, whilst I concluded that the decision did not meet the threshold of being a decision no reasonable decision maker could have reached, whether any decision would meet that standard is determined on a case by case analysis.  In her submission, it was not unreasonable for the applicant to bring these proceedings to test the unreasonableness of the decision.

[13]     While I observed that a reasonable decision maker might have come to a different decision, I went on to say that the argument for Ms Ning being granted a residency  visa  was  not  so  compelling  that  the  refusal  to  grant  her  one  was necessarily unreasonable.

[14]     Judicial  review  proceedings  should  not  be  brought  simply  because  a reasonable decision maker might have come to a different decision.   This is even more obvious in the case where the decision is at the decision maker’s absolute discretion.   I understand the personal imperatives driving Ms Ning but I do not accept that this was a case which clarifies an  “obvious gap in the immigration policy”.  Effectively, Ms Woodroffe is suggesting that Parliament should legislate for specific fact situations.

[15]     Ms Woodroffe also draws attention to the fact that it was not only Ms Ning’s interests  which  were at  stake but  also  those  of her child.    Furthermore,  in  her submission, the general context, that is, the separation of a New Zealand citizen and

parent in the context of New Zealand’s international obligations on the rights of the child, means this is a public rather than a private issue.  I do accept that this case is an indication of the personal hardship which can arise in these types of decisions.  I am not satisfied, however, that translates into making the case one of particular public importance.

[16]     There is some force in the submission as to the relationship between New Zealand legislation and New Zealand’s obligations on the rights of the child. However, it was clear from the affidavit evidence that the relevant information was before the decision maker.  Furthermore, the Court of Appeal and the Supreme Court

have already addressed this issue.1

[17]     For those reasons, I do not accept that the case was a test case, or one which clarified the law or was otherwise of particular public importance.

[18]     Ms Ning then requests a reduction of costs for essentially the same reasons and also for what Ms Woodroffe described as a “lack of care” shown by the decision maker.   In that regard, she refers to the fact that the decision maker’s letter was “pp’ed” and there was an omission from his first affidavit, requiring a second affidavit.

[19]     I am not satisfied that the matters to which Ms Woodroffe refers are of such moment as to have any impact on costs.

Result

[20]     For the reasons given, costs are awarded to the respondent as sought.

Thomas J

1      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [25]; Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR

662 at [15]].