Teng v Minister of Immigration HC Auckland CIV-2010-008463

[2011] NZHC 1858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-008463

UNDER  the Judicature Act 1972

IN THE MATTER OF     an application for review of the decision to execute a Deportation Order served on 16

December 2010

BETWEEN  FEI TENG Applicant

AND  MINISTER OF IMMIGRATION First Respondent

AND  KERRY SHANE SWEETMAN Second Respondent

Counsel:         J Nguy for the Applicant

A R Longdill for the Respondent

Judgment:      14 February 2011

COSTS JUDGMENT OF PRIESTLEY J

Counsel:

J Nguy, Jesse & Associates, DX CP 18014, Auckland 1143. Fax [phone]. Email: [email protected]

A R Longdill, Meredith Connell & Co, P O Box 2213, Auckland 1140.  Fax: [phone]

Email: [email protected]

TENG V MINISTER OF IMMIGRATION HC AK CIV-2010-008463 [14 February 2011]

[1]      On 22 December 2010 I heard an application for review, brought under the Judicature Amendment Act 1972 where interim relief was sought..   The applicant sought to quash various decisions made by the Minister of Immigration which led to the imminent deportation of the applicant to China that evening.   The interim application failed.

[2]      The  applicant  discontinued  his  substantive  proceedings.    The  respondent seeks costs.

[3]      Pursuant to leave which I reserved in my judgment, counsel have filed memoranda on the costs issue.

[4]      The  respondent  seeks  costs totalling  $2,068,  being  calculated  on  the  2B category.   The total claimed equates to 1.1 days, being preparation and filing documents in opposition; preparing for a defended interlocutory application; and the hearing itself.  The costs claim is opposed by the applicant.  Counsel submits that the judicial review application arose out of “exceptional circumstances”.  The applicant was let down by immigration consultants whom he had engaged, as a result of which he has paid a heavy price both financially and emotionally.   Some of the human tragedy surrounding the application is detailed in my 22 December judgment.

[5]      At  the  conclusion  of  the  hearing  I  had  considerable  sympathy  for  the applicant’s personal dilemma although, in terms of judicial review and the relevant authorities, his case was weak, bordering on hopeless.   I had rather hoped costs would not be sought but they have been and there is no criticism of the respondent’s counsel for that.

[6]      I accept an award of costs against the applicant (there being tenuous evidence as to whether he has any ability to pay), would be one more hammer blow for him. Nonetheless,  particularly  in  immigration  cases,  courts  must  guard  against  an approach to costs which might be construed as signalling that last-minute proceedings, which have scant prospect of success, are being encouraged and should be treated differently, for costs purposes, from other civil litigation.

[7]      Although an application of this type is often a frantic endeavour to stave off what  are otherwise  inevitable consequences of overstaying,  the Minister  has  no option but to respond.  The Minister’s obligations to the Court oblige him to place detailed information before the Court at extremely short notice.  This was done by preparing, shortly before the hearing, and filing a detailed affidavit.

[8]      I am also mindful that exposure to costs, should similar proceedings fail, is a factor which might give applicants, and particularly their counsel, cause to pause and assess in an objective way whether there is a reasonable chance of success or at least a  chance  of  a    brief  reprieve  from  deportation.    There  is  no  criticism  of  the applicant’s counsel in making this comment, who was realistic in his submissions on

22 December and had but one issue which he could responsibly advance.

[9]      Costs, on the relevant  authorities, are meant  to be predictable.   There is nonetheless an overriding discretion.   I consider the $2,068 costs sum is properly sought by the respondents.  The previous and apparently fruitless expenditure of the applicant on immigration consultants is not really a relevant factor.  The stark fact remains   that   the   applicant’s   unsuccessful   proceedings   would   have   incurred significant legal costs for the respondent Minister.

[10]     In the exercise of my discretion I consider that the 2B category costs are properly claimed for preparation in opposition (which must have included the affidavit) and the appearance.  Given that experienced counsel was involved for the respondent and the case (from the respondent’s standpoint) was relatively simple,  I am minded to make a small concession in respect of hearing preparation.

[11]     Thus, in the exercise of my discretion, I award costs in the sum of $1,750 to be paid by the applicant to the respondent.

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Priestley J