W v Chief Executive of the Ministry of Business, Innovation and Employment

[2014] NZHC 754

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3852 [2014] NZHC 754

UNDER

The Judicature Amendment Act 1972 and

The Immigration Act 2009

IN THE MATTER

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

AND IN THE MATTER

of an application for leave to appeal against a decision of the Immigration and Protection Tribunal

BETWEEN

W Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Continued on page 2

Hearing:	1 April 2014
Appearances:	R S Pidgeon for the Applicant A R Longdill for the Respondent
Judgment:	10 April 2014

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 10 April 2014 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

W v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 754 [10 April 2014]

AND  CIV-2013-404-003853

UNDER  The Judicature Amendment Act 1972 and The Immigration Act 2009

IN THE MATTER                 of the 1951 Convention Relating to the

Status of Refugees and its 1967

Protocol

AND

IN THE MATTER                 of an application for leave to bring judicial review proceedings

BETWEEN  W Applicant

ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Second Respondent

Counsel/Solicitors:

R S Pidgeon, Pidgeon Law, Auckland

A R Longdill, Meredith Connell, Auckland

[1]      On 16 August 2013 W filed an application for leave to appeal a decision of the  Immigration  and  Protection  Tribunal  (IPT)  dated  19  July  2013  pursuant  to s 245(1) of the Immigration Act 2009 (the Act).  W is a citizen of Turkey and the IPT’s decision denied his claim for refugee or protected person status.  W has also applied  under  s 245(1A)  for  leave  to  commence  judicial  review  proceedings challenging the IPT decision.

[2]      W’s claim for refugee/protected person status was based on his contention that he will be at risk of serious harm if returned to Turkey as a result of his Christian faith.   Although the IPT accepted that W had genuinely converted to Christianity while still in Turkey, the Tribunal rejected his claim that he had been the victim of harassment and threats of serious harm from members of his family.  It also rejected his contention that he considered proselytising to be a fundamental part of his Christian faith and that he would undertake such activity on his return to Turkey, thereby placing himself at further risk.

[3]      For reasons that I do not need to set out here, there was some delay in progressing matters.  But on 30 January 2013, the respondent (the Chief Executive of the Ministry of Business,  Innovation  and Employment) applied under r 5.45 for security for costs in relation to both applications for leave, together with an order that the proceedings be stayed until such time as security is paid.   The security sought is $5,000, which is considered to be less than the actual costs that will be incurred by the respondent in opposing the applications.

[4]      On 4 February 2013 I directed that the applications for leave would be heard on 17 April 2014.  I noted the Crown’s very proper acceptance that the application

for security was unlikely to be pursued if legal aid was granted in the interim.1

1      An application for legal aid was first made by W at around the time of the initial filing in this Court.  It appears that application may initially have been lost by the Legal Services Agency, although as I understand it, it was later declined. A further application for legal aid was made at the beginning of this year, when W obtained the assistance of Mr Pidgeon.

[5]      Further calls were scheduled in the Civil Appeals List to check on progress with legal aid.   After a number of adjournments pending a decision, the Crown understandably (in  light  of the imminence of the leave hearing)  advised  that  it wished the application for security to be determined.   It was on that basis that the matter came before me on 1 April 2014.  I record that W had been given a limited grant of legal aid to enable Mr Pidgeon to argue the application.

[6]      As things transpired, however, a decision declining legal aid in relation to the substantive  matter  was  awaiting  Mr  Pidgeon  on  his  return  to  chambers.    The effective prohibition in r 20.13 on ordering security for costs against appellants who are legally aided does not therefore assist W.

Discussion

[7]      It is neither surprising, nor in dispute, that W does not have the funds to meet the respondent’s costs if his applications for leave fail.

[8]      As I have said, the respondent’s application was made under r 5.45, which relevantly provides:

5.45     Order for security of costs

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

…

(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.

(3)      An order under subclause (2) -

(a)       requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)       by paying that sum into court; or

(ii)      by giving,  to the satisfaction of the Judge or the

Registrar, security for that sum; and

(b)      may stay the proceeding until the sum is paid or the security given.

[9]      Whether r 5.45 applies in relation to applications for leave to commence a proceeding was not addressed by either counsel in their written submissions.   Ms Longdill accepted, however, that such an application was interlocutory in nature.  If that is so, then it is expressly excluded from the definition of “proceeding” contained in r 1.3.2

[10]     That said, however, it seems that r 5.45 has been applied in relation to an application for pre-commencement discovery.3   But I tend to agree with the learned authors of McGechan on Procedure that it is difficult to read the rule as authorising an order for security in such a case.4

[11]     There is a further difficulty.  To the extent the application for security relates to the proposed appeal, it seems clear that r 5.45 does not apply.  The proceeding in which it arises is a (proposed) appeal, and security in relation to appeals is governed by r 20.13. As MacKenzie J said in Schmidt v Jawad:5

I consider that it is plain that r 60 does not apply to an appeal. Rule 60 is, on its terms, limited to an action by a plaintiff, rather than an appeal by an appellant. Under r 60(4), references to a plaintiff and defendant are to be construed as references to persons in the position of a plaintiff or defendant. I  do  not  consider  that  an  appellant  and  a  respondent  can  properly  be described as in the position of a plaintiff and a defendant. That conclusion is reinforced by the specific provision which is made for appeals in r 713. I consider that r 713 is to be seen as a code in respect of security for costs on an appeal. That means that, where an appellant is legally aided, there is no provision for security for costs. In those circumstances, cases such as AMEV Life Assurance Co Ltd v Dixon-McIver [1993] 1 NZLR 733; (1992) 5 PRNZ

503 , which deal with the granting of security for costs under r 60 where a plaintiff is legally aided, have no application.

[12]     Rule 20.13 does not, of course, contemplate an order for security being made

in relation to an application for leave or in relation to any other “interlocutory” step.

2     “Proceeding” is defined as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.

3      Hetherington Ltd v Carpenter (1993) 7 PRNZ 218 (HC); Nelson v Dittmer [1986] 2 NZLR 48

(HC).

4      Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [8.20.06].   The learned authors make the point that the same result could, perhaps, be achieved in a different way; by making the payment of security a condition of the discovery order.

5      Schmidt v Jawad (2005) 17 PRNZ 807 (HC) at [5].

And even to the extent such an order could be made (which I doubt) it should, presumably, be for considerably less than the standard security that would be payable by W in the event that leave was granted.6

[13]     In any event, the precise basis upon which I am able to order security in relation to the present pre-commencement applications for leave remains unclear to me.

[14]     For completeness, however, and on the assumption that jurisdiction exists, I

consider the merits of the Crown’s application below.

[15]     At the outset, I record my acceptance that there is a cost to the Crown in defending appeals and applications for judicial review in the refugee context.  I also acknowledge that comparatively few of those appeals and applications for review ultimately  succeed.     It  is  also  perhaps  unfortunate  that,  until  recently,  the Immigration Act 2009 has effectively encouraged those seeking refugee status to file

both forms of proceedings.7

[16]     But  the  reality  remains  that  these  applications  for  leave  are  brought  by persons who seek refugee or protected person status.  There are human rights issues and international obligations at play.   Moreover, those who seek such status will almost inevitably be without funds and will thus almost always meet the r 5.45 threshold.   And as the comparative material put before the Court by Mr Pidgeon shows, the rules of court governing security for costs in this country have, since

1986, taken a much harder line against impecunious individuals than the equivalent rules in other cognate jurisdictions.8   While in other countries there may or may not be statutory impediments to persons seeking the intervention of the Courts in relation to their claim for refugee status, a requirement to pay security for costs does not

appear to be one of them.

6      The security payable in relation to a one day, category 2, appeal is $1,990.

7      Until the amendment to the Act in 2013, leave was not required to bring review proceedings, which tended to result in the filing of an application for leave to appeal together with an application for review.

8      For example, security cannot be ordered against an individual on the grounds of impecuniosity alone in England.

[17]     Moreover, Parliament itself has taken steps to limit the bringing of appeals and applications for review of the present kind.  It is the requirement to obtain leave that is intended to limit the proliferation of unmeritorious High Court proceedings. It is this Court’s job to weed out the hopeless cases by refusing leave.  It seems to me to be wrong in principle to achieve the same result by a side wind.   Nor am I presently convinced that the bringing of interlocutory applications of the present kind by the Crown is entirely consistent with the statutory emphasis on speedy disposition.

[18]     I accept that, as Ms Longdill said, the reality is that the heavy lifting is done (and the cost is incurred) by the Crown at the leave stage.  I also acknowledge that very often the merits of the intended appeal or review will need to be addressed in that context.  But these matters do not outweigh the matters I have discussed above.

[19]     Accordingly, in the event that I did have jurisdiction to order security in this case, I would not do so.

Rebecca Ellis J