NS (India) v A Refugee and Protection Officer

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-87

[2024] NZHC 384

BETWEEN
NS (INDIA)

Applicant

AND

A REFUGEE AND PROTECTION OFFICER

Respondent

Hearing: On the papers

Counsel:

Applicant self-represented

S M Perera and Z M McCoy for the Respondent

Judgment:

29 February 2024

JUDGMENT OF HARLAND J

Introduction

[1] On 7 November 2023, I issued my judgment refusing the applicant leave to appeal a decision of the Immigration and Protection Tribunal, which had declined to recognise him as a refugee or protected person. Costs are now sought by the respondent and are opposed by the applicant.

[2] I have decided to award costs to the respondent for the reasons set out in this judgment.

The application for costs

[3] Rule 14.2(1)(a) of the High Court Rules 2016 (HCR) states that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. Although the Court has a discretion in awarding costs by

NS (INDIA) v A REFUGEE AND PROTECTION OFFICER [2024] NZHC 384 [29 February 2024]

virtue of r 14.1 of the HCR, the respondent submits that the rules and principles that apply mean this is not an exceptional case such that costs should not be awarded.

[4]The respondent seeks an order for costs on a 2B basis and disbursements.1

Notice of opposition

[5] The applicant filed a memorandum in opposition. He submits he is unable to pay costs and it is not possible for him to pay them if he is deported, which is an inevitable consequence of my judgment. Although the applicant sought a hearing in person, there is nothing raised in this memorandum that would justify costs (which are normally dealt with on the papers) being traversed at a hearing.

Discussion

[6] I requested that the respondent provide me with further information about whether ordering costs was a futile exercise given the applicant’s inevitable deportation. Counsel advised the applicant’s ability to return to New Zealand will be subject to a period of prohibition for five years, pursuant to ss 179 and 157 of the Immigration Act 2009. I was advised that the applicant’s ability to return to New Zealand after that would be dependent on the immigration instructions in effect at that time.

[7] Although counsel for the respondent traversed the law regarding the well- known principle that a poor prospect of costs recovery does not justify a reduction or refusal of costs, the key purpose of my enquiry was to address what the legal position about the applicant’s return to New Zealand would be.

[8] This Court has always been clear that impecuniosity is not an answer to a claim for a costs award.2 Meaningful costs awards can be made, even against impecunious

1 The proceeding had earlier been categorised as a 2B proceeding for costs purposes by me in my Minute of 20 March 2023.
2 Gibson v Fisher CIV-2006-404-103 (HC) 6 July 2007 at [9]; NM(Fiji) v Minister of Immigration [2020] NZHC 2729 at [8]; BR (Bangladesh) v Chief Executive, Ministry Business Innovation and Employment [2018] NZHC 902 at [6]; Te Whare O Te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council [2014] NZHC 2969 at [16].

parties.3 One can have sympathy for the applicant, but there is a settled line of authority regarding costs awards for litigants in his circumstances.

[9] In terms of quantum, the order for costs is justified however it is not clear from the disbursements whether the accommodation and airfares were for one counsel or two. I have not certified two counsel and therefore this judgment is dependent on confirmation that these disbursements are for counsel who presented the argument for the respondent.

Result

[10] I make an order that the applicant pay the costs and disbursements of the respondent as outlined, subject to the confirmation I have referred to in para [9] regarding accommodation and air travel.

Harland J

3 Te Whare O Te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council, above n 2, at [17].

The matter before the High Court of New Zealand concerned an application for costs by the respondent, a Refugee and Protection Officer, against the applicant, NS (India), who was unsuccessful in his appeal against the Immigration and Protection Tribunal's decision not to recognise him as a refugee or protected person. The application was heard on the papers, with the applicant self-represented and the respondent represented by counsel.

The legal issue at hand was whether the applicant, who was impecunious and facing imminent deportation, should be ordered to pay the respondent's costs. The respondent argued for costs on a 2B basis, which means costs are payable by the unsuccessful party regardless of the merits of their case. The applicant opposed the costs on the grounds of his financial inability to pay and the futility of enforcing the costs given his impending deportation.

The Court, after considering the submissions and the legal principles that a poor prospect of costs recovery does not justify a reduction or refusal of costs, concluded that the applicant should pay the costs. The Court emphasised that impecuniosity does not preclude a costs award and that meaningful costs awards can be made against impecunious parties. The Court ordered the applicant to pay the respondent's costs and disbursements, subject to clarification regarding the disbursements for accommodation and airfares. The Court recognised the applicant's financial hardship but adhered to the settled legal position on costs awards in such circumstances.

The final order of the Court was that the applicant pay the respondent's costs and disbursements, subject to the condition that the disbursements for accommodation and airfares are confirmed to be for the counsel who presented the argument for the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established