RM v Immigration and Protection Tribunal

[2016] NZHC 1701

NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYING PARTICULARS OF THE APPLICANTS AND OF THEIR CLAIM AND STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2336

CIV-2015-404-2337 [2016] NZHC 1701

UNDER

the Judicature Amendment Act 1972 and

the Immigration Act 2009 and the 1951
Convention Relating to the Status of
Refugees and its 1967 Protocol

IN THE MATTER

of an application for leave to appeal and bring judicial review proceedings under ss 245 and 249 of the Immigration Act

2009

BETWEEN

R M
First Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

[Continued over]

Hearing:	On the papers
Counsel:	R S Pidgeon for applicants B C L Charmley for respondents
Judgment:	26 July 2016

JUDGMENT NO 2 OF PALMER J (Costs)

This judgment is delivered by me on 26 July 2016 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Solicitors:

Pidgeon Law, Auckland

Crown Law Office, Wellington

R M v IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 1701 [26 July 2016]

AND BETWEEN                  SM

Second Applicant

TM

Third Applicant

UM

Fourth Applicant

ANDA   REFUGEE   AND   PROTECTION OFFICER, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Respondent

Application

[1]      The  applicants  lived  in  New  Zealand  from  1997  on  the  basis  of  false identities.   The respondents turned down their applications for refugee and protected person status.   The applicants sought leave to appeal and to bring judicial review proceedings.  In my judgment of 20 April 2016 I dismissed the applications.1    The Crown seeks costs on a 2B basis, in the amount of $6,258.51.

[2]      The applicants acknowledge costs must be payable unless there are special reasons to the contrary and any departure from the standard costs regime needs to be on a principled basis.  They also acknowledge the proceedings were a private matter but submit that obiter comments in my judgment are of wider significance.  They accept that “there is an element of happenstance to this”, but seek reduction in costs to $5,000 under r 14.7(e).   They submit bona fide refugee and protected person claimants should not be discouraged from leave applications and that a reduction in

costs can be appropriate in Bill of Rights cases.2

Law

[3]      I agree bona fide refugee and protected person claimants should not be discouraged from making leave applications.  That is usually achieved by successful applicants being awarded costs, per r 14.2(a) of the High Court Rules, which has been characterised by the Supreme Court as a “fundamental principle”.3

[4]      In other cases, reduction in costs is possible under r 14.7(e) if a proceeding concerns a matter of public interest and the relevant party acts reasonably.4   Or, if an applicant achieves some success, particularly on an important point of principle, the Court may decide not to follow the usual rule if that is in the interests of justice.5

And Bill of Rights cases may attract lower costs awards because they not only

1      R M v Immigration and Protection Tribunal [2016] NZHC 735. The judgment is under appeal.

2      Referring to Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC).

3      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

4      New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC).

5      New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [151] and Environmental Defence Society Inc v New Zealand King Salmon Company Ltd  [2014] NZSC 167 at [45].

clarify issues of public importance but also strengthen and uphold respect for human rights.6

Decision

[5]      Here, the applicants were not successful.  While they acted reasonably in the conduct of the proceedings, the proceeding was essentially one pursued in the applicants’ private interests.  The only aspects of public interest were manifested in obiter dicta in the judgment that were, by definition, not essential to the outcome of the case and are likely to be overtaken by the judgment of the Court of Appeal to which appeal has been sought.

[6]      Accordingly, I do not consider this case is one in which the usual rule should be disturbed.  Costs on a 2B basis are awarded as sought by the Crown.

Palmer J

6      Wong v Registrar of the Auckland High Court, above n 2, at [25].