AA (Zimbabwe) v Refugee and Protection Officer

[2019] NZHC 1756

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2442

[2019] NZHC 1756

UNDER

s 245 of the Immigration Act 2009

IN THE MATTER

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

BETWEEN

AA (ZIMBABWE)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

CIV-2017-404-2454

BETWEEN

AB (ZIMBABWE)
Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

On the papers:	at Auckland
Judgment:	26 July 2019

JUDGMENT OF POWELL J

[Costs]

AA (ZIMBABWE) v REFUGEE AND PROTECTION OFFICER [2019] NZHC 1756 [25 July 2019]

[1]        By judgment dated 28 September 2018 I dismissed these two appeals. At the conclusion of my judgment I set out a timetable in the event the respondent sought costs.

[2]        Although the respondent filed a memorandum within one month as directed, the file was unfortunately never referred to me for determination. In the meantime, although the applicants had not initially replied to the respondent’s application for costs, a response was in fact ultimately provided in the last week, on 15 July 2019. In the circumstances I have determined the application having received submissions from both parties.

Costs sought

[3]        The respondent simply seeks costs on a 2B basis in respect of the two appeals. No issue is taken by the applicants with the calculation and it appears to reflect the steps taken by the parties in the proceedings.

The position of the applicants

[4]        The applicants request that any award of costs should take account of the fact the proceedings were one of appeal only and did not include any accompanying judicial review, and that more broadly  the  applicant  husband  has  no  income,  New Zealand assets or accessible worldwide assets and it would therefore put him a position of  hardship if costs  were awarded  against  him.  He therefore submits that r 14.7(g) of the High Court Rules 2016 is fulfilled and no costs should be ordered.

Discussion

[5]        The fact that the applicant husband has no means or assets is not of itself a basis for not fixing costs in the present appeal. It is noted that no comparable rationale has been argued on behalf of the applicant wife. In all the circumstances there is no reason for costs not to be fixed, whether they are ultimately enforced against the applicants will be a matter for the respondent.

[6]        No issue has been taken with the overall quantum of costs sought and while there were in fact two separate appeals that had not been consolidated this is an

appropriate case for both applicants to be jointly and severally liable for a single award of costs.1

[7]        In making the award I do not overlook that the applicants’ applications for leave to appeal were an integral part of the statutory appeal process prescribed under the Immigration Act 2009. Had there been even an arguable error of law identified there would logically be a basis for the Court to refuse or reduce costs in accordance with r 14.7(g) of the High Court Rules 2016. Such an argument does place a burden on an applicant to only bring application for leave when there is an arguable basis to do so. This was not the case in the present appeals where it was clear that there was not even any arguable error of fact let alone error of law and in those circumstances costs should follow the event on these applications.

Decision

[8]        The   respondent   is   entitled   to   costs   against   the    applicants    in    CIV- 2017- 404- 2442 and CIV-2017-404-2454 in the sum of $10,481.00 plus disbursements of $270.00, a total of $10,751.00.

Powell J

1      Narayan v Arranmore Developments Ltd [2011] NZCA 681 at [51]-[54].