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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)