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Ly v Minister of Immigration

High Court Auckland CIV-2011-404-001540
20 June 2011
Whata J (on the papers)

Judicial review - costs - application for leave to bring judicial review proceedings out of time - application declined - whether Minister to be awarded costs - High Court Rules, Rule 14.1

In Ly v Minister of Immigration (High Court Auckland, CIV2011-404-1540, 5 May 2011) Whata J declined an application under s 247(1) of the Immigration Act 2009 for further time in which the intending plaintiff could commence review proceedings challenging the decision of the Minister of Immigration. The Minister sought costs on a 2B basis in the sum of $4,324. The intending plaintiff opposed costs on the basis that she faced the prospect of being removed from New Zealand and an award costs would add to her stress and suffering in an already difficult situation.

Held:

1   Ordinarily costs follow the event.

2   The applicant had been unlawfully resident in New Zealand for some time. The Court could not be seen to condoning such unlawful activity in any way. The Crown had been put to the expense of exercising its statutory function for the purposes of maintenance of immigration law. While there were public interest considerations and unusual facts, they were not such as to override the concern that the Court should not be seen to condone obvious illegality. Nor was there any evidence of undue hardship that might arise out of a costs order that might militate against costs being granted (see paras [5] and [6]).


Order for costs granted

Counsel
T Shah for the applicant
A Longdill for the respondent


WHATA J [1]
In accordance with my directions, counsel have filed memoranda in relation to costs.

[2] The respondent, having succeeded in defending the application to file out of time, has sought costs on a 2B basis and in the ordinary way. Those costs total $4,324.

[3] The applicant opposes costs on the basis that she faces the prospect of being removed from the country as she is in New Zealand unlawfully and if costs are awarded against her, they will add to her stress and suffering in an already difficult situation. Her counsel also says that the issues raised in this case concern fundamental human rights and the rights of the child.

Discussion

[4] The Crown is correct that ordinarily costs follow the event. I have considered whether the public interest considerations in this case place it in a different category. Certainly this case was the first, or one of the first cases dealing with the new Immigration Act and an application for leave out of time. To that extent it raised public interest considerations that take it out of the ordinary. I would add further that, while the applicant was not successful, the facts were somewhat unusual with notice of the decision falling over the holiday period and the late notice being given directly to the applicant. The case did also call for consideration of the relevance of the rights of the child in this context.

[5] Balanced against this, the applicant was unlawfully resident in New Zealand for some time. This Court cannot be seen to be condoning such unlawful activity in any way. The Crown has been put to the expense of exercising its statutory function for the purposes of maintenance of immigration law.

[6] In these circumstances, while there are public interest considerations and unusual facts, they are not such as to overide the concern that I should not be seen to condone obvious illegality, I propose to grant costs in favour of the Crown. Nor is there any evidence before me of undue hardship that might arise out of a costs order that might militate against costs being granted.

[7] Orders as sought by the Crown accordingly.

Solicitors for the applicant: Alastair McLymont (Auckland)
Solicitors for the respondent: Meredith Connell, Crown Solicitors (Auckland)