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High Court Cases
Teng v Minister of
Immigration
High Court Auckland
CIV-2010-404-008463
22 December 2010; 14
February 2011
Priestley J
Judicial review - costs
- interim order application dismissed - whether Minister to be awarded
costs - whether reduction in costs appropriate - High Court Rules, Rule
14.7
Mr Teng, a citizen of
the People's Republic of China, arrived in New Zealand in January
2003 on a student visa. Over the following six years a number of
student and visitor permits were held by him. The last expired in
mid-March 2010. From that time he lived in New Zealand illegally. A
deportation order was served on 16 December 2010. Judicial review
proceedings were filed together with an urgent application for an
interim order under s 8 of the Judicature Amendment Act 1972.
On 22 December 2010 the
section 8 application was dismissed on the grounds that there was no
realistic probability of a judicial review application succeeding on
the merits. Costs were reserved. See Teng
v Minister of Immigration (High Court Auckland,
CIV-2010-404-008463, 22 December 2010, Priestley J. The judicial review
proceedings were subsequently discontinued.
Following the receipt
of memoranda, Priestley J on 14 February 2011 issued a separate
judgment on the costs application. The Minister sought $2,068
calculated on the 2B category. In the event, the sum of $1,750 was
awarded.
Held:
1.
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 (see para [6]).
2. Costs,
on the relevant authorities, are meant to be predictable. There is
nonetheless an overriding discretion. The 2B category costs were
properly claimed for preparation in opposition and the appearance.
Given that experienced counsel was involved for the Minister and the
case was relatively simple, a small concession in respect of hearing
preparation was appropriate. Costs in the sum of $1,750 were to be paid
to the Minister (see para [9] and [10].
Application for
costs granted
No cases mentioned
in judgment
Counsel
C L Amery & J E
A
Glyn for the applicant
A R Longdill for
the respondent
PRIESTLEY J [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.
Solicitor for the
applicant: Jesse & Associates (Auckland)
Solicitor for the respondent:
Crown Solicitor (Auckland)