Verschuur v Minister of Immigration

[2018] NZHC 160

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-000046

CIV-2017-442-000048 [2018] NZHC 160

UNDER THE

Immigration Act 2009

UNDER THE

Judicial Review Act 2016

IN THE MATTER OF

A finding by the Immigration and Protection Tribunal, subsequent to conviction of a resident visa holder

BETWEEN

GUY LAWRENCE VERSCHUUR Applicant/Plaintiff

AND

THE MINISTER OF IMMIGRATION First Respondent

REGINA
Second Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Third Respondent

Hearing:	15 February 2018
Counsel:	R W Ord for Applicant/Plaintiff K Orpin-Dowell and R Garden for Respondents
Judgment:	15 February 2018

JUDGMENT OF COLLINS J

Introduction

[1]      This morning I granted an application by the first and second respondents

(the Crown) for security for costs and ordered a stay of Mr Verschuur’s proceedings

VERSCHUUR v THE MINISTER OF IMMIGRATION [2018] NZHC 160 [15 February 2018]

pending the payment of that security.  I have adjourned the Crown’s applications to strike out substantial parts of the proceedings.

[2]      This judgment explains my reasons for ordering security for costs and a stay of the proceedings.

Background

[3]      Mr Verschuur is a 56 year old American citizen, who has spent considerable periods of time in New Zealand since 2002. He was granted residence in this country on 17 October 2008 and he became a permanent resident in January 2011.

[4]      Mr Verschuur has a number of criminal convictions in the United States and New Zealand. His most recent convictions were on 13 October 2015, when he pleaded guilty to two charges of causing loss by deception.1   He was sentenced to 95 hours community work and ordered to pay reparations totalling $2,480.

[5]      Upon his conviction, Mr Verschuur became liable for deportation.2  He elected to leave New Zealand voluntarily on 21 February 2016 and has not returned since that date. Mr Verschuur is thought to have travelled in Asia and South America. His exact whereabouts is not known, although it is suspected he is in Argentina.  Mr Verschuur left New Zealand before he was able to be served with a deportation liability notice, which was served on his lawyer on 18 November 2016.

[6]      Mr Verschuur gave instructions to his lawyer to appeal to the Immigration and Protection Tribunal (the Tribunal) on humanitarian grounds.   That appeal was dismissed on 16 June 2017.3

[7]      Mr Verschuur then appears to have given instructions to file an appeal and commence judicial review proceedings in this Court.  It is not necessary to set out the precise sequence of events concerning the filing of the appeal and application for

judicial review.  Suffice to record that documents purporting to appeal the Tribunal’s

1      Crimes Act 1961, ss 240 and 241.

2      Immigration Act 2009, s 161(1)(b).

3      Verschuur v Minister of Immigration [2017] NZIPT 600385.

decision and an application to judicially review both the Tribunal’s decision and the Minister’s deportation liability notice were sent by Mr Verschuur’s lawyer to the Court on 18 July 2017. Those documents were rejected by the Court.

[8]      An appeal from the Tribunal’s decision was accepted by the Court on 3 August

2017 and a separate application for judicial review was accepted for filing with the

Court on 4 August 2017.

[9]      One of the issues raised in the Crown’s strike-out application concerns the apparent failure by Mr Verschuur to comply with the strict timetables for filing applications for leave to appeal and for commencing applications for judicial review.4

[10]     Mr Verschuur opposes the Crown’s application for security for costs.   He acknowledges, however, that he is impecunious, that his application for civil legal aid has been declined and that he is continuing to try to make the reparation payments ordered by the District Court on 13 October 2015.

Rule 5.45

[11]     Rule 5.45 of the High Court Rules 2016 governs applications for security for costs. The relevant portions of that rule state:

5.45     Order for security of costs

(1)      Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)      that a plaintiff—

(i)       is resident out of New Zealand; or

(ii)      is a corporation incorporated outside New Zealand; or

(iii)      is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)       that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2)      A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

…

Analysis

Is Mr Verschuur resident outside New Zealand?

[12]     The question of whether or not a person is resident outside of New Zealand is answered by examining where their usual place of abode is.  This is a matter of fact and judgement.5

[13]     I am very satisfied Mr Verschuur is no longer resident in New Zealand. He left this country in February 2016 and has not returned.   I cannot determine from the evidence  exactly where  Mr Verschuur  currently  resides,  but  clearly it  is  not  in New Zealand.

[14]     Through  his  lawyer,  Mr  Verschuur  says  that  he  intends  to  return  to New Zealand for the hearing of his substantive appeal and judicial review.   That intention is, however, not determinative of the question of where he currently resides, which is likely to be somewhere in Argentina.

Is Mr Verschuur unlikely to pay the Crown’s costs if he is unsuccessful in his proceedings?

[15]     Although this limb of r 5.45 is an alternative to the place of residence issue, I

deal with it for the sake of completeness.

[16]     There is overwhelming evidence that Mr Verschuur will be unlikely to pay any order for costs made against him if his proceeding fails.

[17]     In his notice of opposition, Mr Verschuur acknowledges he is “impoverished”. He even suggests the Crown is the cause of his financial plight.

[18]     In addition, Mr Verschuur made application to waive filing fees on the basis that he has no income, funds or assets in this country. It was also necessary for him to apply for civil legal aid. That application was declined.

Discretion

[19]     In exercising my discretion to order payment of security for costs, I have given consideration to the merits of Mr Verschuur’s proceedings.   Without reaching any definitive conclusions, it is clear there are a number of hurdles facing Mr Verschuur if he wishes to continue with his proceedings. There are time limit problems that he will need to address and his claim in his judicial review proceeding that agents of the Crown were required to warn him of the risk of being deported if he pleaded guilty to the charges he faced in October 2015 raises, to say the least, very novel arguments.

[20]     In exercising my discretion to order security for costs I have been particularly influenced by two other considerations:

(1)Mr Verschuur has not disclosed where he is currently living.  It will be very difficult therefore to enforce any costs order against him.

(2)       The   suggestion   the   Crown   is   the   cause   of   Mr   Verschuur’s impecuniosity is unlikely to gain any traction.

[21]     While every plaintiff has a right to access justice, the security for costs regime has been put in place to protect the interests of defendants in circumstances such as those presented in this case.   The grounds for ordering security for costs are overwhelming.

Amount of security

[22]     The Crown has calculated that it is likely to be entitled to costs in the vicinity of $25,645.  While the case will undoubtedly require time and effort on the part of lawyers for the Crown, I think it is necessary to temper the award for security for costs.

[23]     In my assessment, the interests of justice are more than adequately served by an order for security for costs in the sum of $15,000.  That sum is a total sum that covers both sets of proceedings.

Stay

[24]     In the circumstances of this case, it is entirely appropriate that Mr Verschuur’s proceedings be stayed pending the payment of the security for costs that I have ordered. The proceedings are accordingly stayed until security for costs are paid.

Costs

[25]     The Crown is entitled to costs on a scale 2B basis in relation to its security for costs application.

D B Collins J

Solicitors:

Rob Ord, Nelson for Applicant

Crown Law Office, Wellington for Respondents