Rafiq v Secretary for Internal Affairs

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000355

[2023] NZHC 1188

BETWEEN
RAZDAN RAFIQ

Applicant

AND

SECRETARY FOR INTERNAL AFFAIRS AND CHIEF EXECUTIVE FOR

DEPARTMENT OF INTERNAL AFFAIRS
First Respondents

MINISTER OF INTERNAL AFFAIRS

Second Respondent

Hearing: On the papers

Judgment:

17 May 2023

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 17 May 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law Office, Wellington. Copy to: Applicant.

RAFIQ v SECRETARY FOR INTERNAL AFFAIRS AND CHIEF EXECUTIVE FOR DEPARTMENT OF INTERNAL AFFAIRS [2023] NZHC 1188 [17 May 2023]

[1] The respondents seek costs even though Mr Rafiq was successful in his judicial review action.1 They do so on the basis the case did not need to go to a hearing, as the respondents informed Mr Rafiq on 16 November 2022 there were inadequacies in the Minister’s decision to decline Mr Rafiq citizenship, such it should be quashed.2 The respondents offered to waive fees in relation to a fresh citizenship application if Mr Rafiq abandoned his action.

[2] Mr Rafiq nonetheless insisted it be heard. Among other things, Mr Rafiq sought to persuade the Court to direct the Minister to grant him citizenship, a remedy that was unrealistic. So too Mr Rafiq’s claim for $2,000,000 in damages.

[3] Mr Rafiq’s claim succeeded, but only to the extent of the respondents’ concession. So, there did not need to be a hearing; the action could have been addressed by a joint memorandum inviting the Court to quash the decision. I express things this way, rather than the Court simply making orders by consent, as judicial review requires satisfaction on the part of the Court there has been reviewable error. However, in this context, this is a distinction without a difference as a joint memorandum (inviting the Court to quash the decision) would have avoided a hearing, and the respondents’ costs concern it and related preparation post 16 November 2022.

[4] Mr Rafiq has not responded to the claim for costs. On 19 April 2023, I issued a Minute saying he was to do so on or before 3 May 2023, and if he did not, I would adjudicate.

[5]I now do so. I award the costs and disbursements sought, a sum of $10,192.33.

……………………………..

Downs J

1 Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs
[2023] NZHC 127.
2 High Court Rules 2016, rr 14.10 and 14.11(3)(b).

CaseChat Overview and Summary

In the case of Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs, the respondents sought costs despite the applicant, Mr Rafiq, being successful in his judicial review action. The respondents argued that the case did not require a hearing, as they had informed Mr Rafiq on 16 November 2022 that there were inadequacies in the Minister’s decision to decline Mr Rafiq's citizenship application, which should lead to the decision being quashed. The respondents further offered to waive fees for a fresh citizenship application if Mr Rafiq abandoned his action. However, Mr Rafiq insisted on proceeding with the hearing, seeking remedies that were ultimately unrealistic, such as a direction for the Minister to grant him citizenship and damages amounting to $2,000,000. Despite Mr Rafiq’s success, his claims went beyond the respondents’ concession, leading to unnecessary costs and preparation.

The legal issues before the court involved whether the respondents were entitled to costs despite Mr Rafiq’s success, considering the unnecessary continuation of the case post-concession. The court had to determine if the action could have been concluded by a joint memorandum inviting the Court to quash the decision, thereby avoiding a hearing. The court had to balance the principle that judicial review requires satisfaction of reviewable error against the practicalities of avoiding a hearing through a joint memorandum. Additionally, the court needed to decide on the appropriate costs to be awarded to the respondents, considering the circumstances of the case and the failure of Mr Rafiq to respond to the claim for costs.

The court ruled in favour of the respondents, awarding them the costs and disbursements sought, amounting to $10,192.33. Downs J determined that Mr Rafiq’s insistence on proceeding with the hearing despite the respondents’ concession led to unnecessary costs. The court found that the action could have been addressed by a joint memorandum, which would have avoided the hearing and related costs. The judge also noted that Mr Rafiq did not respond to the claim for costs, despite a warning to do so by a specified date. The court concluded that the award of costs was justified under the circumstances, as Mr Rafiq’s actions prolonged the proceedings unnecessarily.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established