IBRAHIM V THE ASSOCIATE MINISTER OF IMMIGRATION COA CA746/2011

IBRAHIM V THE ASSOCIATE MINISTER OF IMMIGRATION COA CA746/2011 [6 June 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA746/2011[2012] NZCA 229BETWEEN DEMYSSA AHMED IBRAHIMAppellantAND THE ASSOCIATE MINISTER OFIMMIGRATIONRespondentCounsel: F Cooke QC and M Smith for AppellantI C Carter for RespondentJudgment: 6 June 2012JUDGMENT OF ARNOLD JA The application for review of the Acting Registrar's decision not todispense with security for costs is declined.B The amount of security required is reduced from $5,560 to $1,390, which must be paid into Court within 20 working days of the date of this judgment._______________________________________________________________REASONSIntroduction[1] Mr Ibrahim has appealed a decision of MacKenzie J ordering him to pay security for costs in the High Court on his application for judicial review.1 Security for costs on the appeal was set at $5,560. On 29 November 2011, Mr Ibrahim1 Ibrahim v Associate Minister of Immigration HC Wellington CIV-2011-485-1142, 18 October 2011.applied for dispensation from the requirement to pay security.2 The respondent opposed the application. In a letter dated 20 December 2011, the Acting Registrar declined to dispense with security. This is an application for review of that decision.Background[2] Mr Ibrahim is from Ethiopia and of Oromo ethnicity. He is a member of the Oromo Liberation Front party, which is in opposition to the current government of Ethiopia. He is presently resident in Egypt, where he fled to escape the violence directed toward the Oromo people generally and toward himself in particular as aresult of his political beliefs. Mr Ibrahim's wife, Hajera, is a New Zealand citizen and lives in Wellington. She moved to New Zealand with family members in 2004 and was granted citizenship in 2008. In her original residency application, Hajera declared that she was not married and had no children. In fact, Mr Ibrahim and Hajera had two children together. The children stayed in Ethiopia with Mr Ibrahim. One of them died in a fire in 2010 and the other suffered burns but survived and is still in Ethiopia with family friends.[3] Mr Ibrahim applied for a residence class visa for himself and the two children in 2006, with Hajera as their sponsor. In 2009 that application was declined on the ground of the original declaration by Hajera that she was unmarried and childless.Mr Ibrahim's appeal against that decision was dismissed by the Residence Review Board, which determined that an exception to policy was not justified.[4] In November 2010, shortly after Mr Ibrahim's son died in the fire, a localMember of Parliament made a submission to the Associate Minister of Immigration. The appellant, who was unaware of that submission, also made his own more comprehensive submission to the Associate Minister in February 2011 for a special declaration under s 378 of the Immigration Act 2009. The application was supported by extensive evidence that had not been presented with the earlier submission by the MP. In May 2011 the Associate Minister declined to intervene.2 Court of Appeal (Civil) Rules 2005, r 35(6)(c).[5] Mr Ibrahim issued judicial review proceedings in respect of the AssociateMinister's decision, on the principal ground that the materials Immigration New Zealand provided to the Associate Minister for his consideration did not include Mr Ibrahim's February 2011 application and the accompanying evidence, nordocumentary evidence provided previously (including two affidavits sworn in 2008).[6] MacKenzie J ordered Mr Ibrahim to pay security for costs in respect of hisapplication for judicial review. The Judge had no information as to Mr Ibrahim'sfinancial position, but proceeded on the assumption that an order for security for costs would probably mean that he would be unable to pursue the application. However, in terms of r 5.45 of the High Court Rules he determined that it was just inall the circumstances to order payment of security. Mr Ibrahim's interest in notlightly being prevented from pursuing his claim was outweighed by the respondent'sinterest in being protected against being drawn into unjustified litigation.3 That conclusion was reached in light of s 187(8) of the Immigration Act, which provides:A person may bring review proceedings in a court in respect of a decision in relation to a residence class visa except if the decision is in relation to—(a) the refusal or failure to grant a residence class visa to a person outside New Zealand; ...[7] The Judge found that s 187(8) applied to prevent any application for review because Mr Ibrahim was outside New Zealand. He noted the submission for Mr Ibrahim that the provision had to be interpreted consistently with s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA), but concluded that:[21] The applicant faces a considerable hurdle in establishing that his ability to apply to the Associate Minister for a special direction under s 378 of the Immigration Act 2009 is a right or interest protected or recognised by law. If that hurdle were surmounted, the applicant would face further hurdles in ss 4 and 5 of the BORA. I do not consider that the argument that s 187(8) should not be applied is sufficiently strong that the respondent should be required to meet the argument, without protection for costs.3 Applying the test set out by this Court in A S McLachlan Ltd v MEL Networks Ltd (2002) 16 PRNZ 747 (CA) at [15]–[16].The Acting Registrar's Decision[8] The Acting Registrar noted that Mr Ibrahim applied for dispensation on the grounds that the appeal raises novel and important points of law, is arguable, and that his impecuniosity would prevent him from pursuing the appeal if security was not waived. While acknowledging that he could not comment on the merits of theappeal, the Acting Registrar pointed to MacKenzie J's statement that Mr Ibrahim'ssubmission that the application for review is factually strong could not overcome thestatutory impediment to judicial review of the Associate Minister's decision. He also noted that the Judge had undertaken a balancing exercise between Mr Ibrahim'sinterest in not being deprived of access to the courts and the respondent's interest inbeing protected from unjustified litigation, and found in favour of requiring security for costs.[9] The Acting Registrar concluded that security was necessary to protect the respondent in terms of any costs that could be awarded against the appellant in the event that the appeal is unsuccessful. Security remained set at $5,560, to be paid by 8 February 2012.Security for Costs - General Principles[10] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.4 However, the Registrar may vary or waive security on application "if satisfied that the circumstances warrant it".5[11] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.6 The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the4 Rule 35(2).5 Rule 35(6).6 Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943 at [9].question whether there is any public interest in having them determined.7Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.8Submissions[12] Counsel for Mr Ibrahim submit that security should be dispensed with because:(a) It is fundamentally unfair to require Mr Ibrahim to pay security for costs in respect of his judicial review challenge, as the effect is to render the challenge nugatory. The Crown should not be permitted to use security for costs as an indirect means of avoiding public lawscrutiny by exploiting an individual's impecuniosity. Whilerecognising that the Supreme Court has rejected the submission that setting security for costs in judicial review proceedings is inconsistent with s 27 of the NZBORA,9 counsel submit that there should be a presumption against any security being ordered against the applicant in such circumstances, with an onus on the Minister to rebut that presumption on the balance of probabilities.(b) The appeal is meritorious. There are strong grounds for reading down s 187(8)(a) in light of s 27 of the NZBORA so as not to preclude judicial review:(i) where the decision relates to persons within New Zealand (here, the appellant's wife) in addition to persons outside NewZealand; or(ii) where the "decision" is the culmination of a procedurallyunfair process.107 Creser v Official Assignee CA196/05, 12 June 2006 at [29].8 Fava v Zaghloul above n 6, at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].9 Easton v Wellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360.10 Relying on Attorney-General v Ryan [1980] AC 718 (PC).(c) Mr Ibrahim had been granted legal aid, but this was withdrawn just days before the security for costs hearing in the High Court after the Crown wrote to the Legal Services Agency (the Agency) drawing s 12(1)(a)(iii) of the Legal Services Act 2011 (LSA) to its attention.11Mr Ibrahim was not given an opportunity to exercise his right under s 31(2) of the LSA to comment on a proposed withdrawal of legal aid before it took effect. Counsel submit that the withdrawal of legal aid so late in the piece prevented the appellant from tendering evidence at the security for costs hearing that he did not tender earlier because he thought he would have the protection of s 45(2) of the LSA.12 TheCrown's conduct in communicating with the Agency ex parte in circumstances where the communication was likely to enhance its position in the security for costs hearing was procedurally unfair. While counsel accept that "there might be some merit in the respondent's position in a situation where there was clearly no basis in fact or in law for the grant of legal aid", they submit that is not the position here. The limit on legal aid in s 12(1)(a)(iii) is the mirror of the limit on judicial review in s 187(8)(a) of the Immigration Act, so it should also be read down so as to be consistent with s 187(8)(a).(d) The issues raised by the appeal are novel and important, and it is in the public interest for them to be determined by this Court. Counsel argue this is a "test case", so that an award of costs would not bemade against Mr Ibrahim in any case if he is unsuccessful.13 That is because:(i) Counsel could not locate any other case where the Crown has sought, let alone been granted, security for costs in the context11 Section 12(1)(a)(iii) of the Legal Services Act 2011 (LSA) provides that legal aid may not begranted in proceedings involving a decision under the Immigration Act 2009 in relation to aperson who is not in New Zealand and is not a New Zealand citizen.12 Section 45(2) provides that "No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances."13 Attorney-General v McNally [1993] 1 NZLR 550 (CA) at 552.of an application for judicial review of a decision under the Immigration Act.14(ii) The New Zealand Courts have never had to consider a privative clause that purports to exclude the right to judicially review a decision that affects the rights and interests of individuals in New Zealand solely on the ground that the applicant for judicial review is outside New Zealand.(iii) This Court has never been asked to consider whether the test for security for costs should be different in judicial review cases given the differences between public and private law proceedings, the guarantees in s 27 of the NZBORA and the ready availability of strike outs in the judicial review context.[13] In response, the Minister submits that security for costs is not unusual where immigration decisions are challenged in the courts and there is no basis for creating a special category of proceeding that is exempt from security for costs orders. It is well settled that the fact an order for security may prevent a claim from being pursued does not bar the making of an order; rather, r 5.45 of the High Court Rules"contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs".15 Further, the Minister says that this is not the first time security has been sought or awarded in judicial review proceedings involving the fundamental concerns or rights of the applicant.16 The fact that those concerns or rights relate to immigration is irrelevant. High Court judges are capable of assessing the justice of an order for security for costs in a judicial review case and exercising their discretion appropriately.14 I note that security has been sought before in at least one such case but was declined. There is no reasons judgment available in respect of that decision; the result is merely referred to in a related judgment: see Qiong v Minister of Immigration HC Auckland CIV-2005-404-5202, 18 July 2006 at [9].15 A S McLachlan, above n 3, at [15].16 Citing Forrest v Chief-Executive of the Department of Corrections HC Auckland CIV-2011-409-1233, 2 December 2001.[14] In respect of the legal aid argument, the Minister says that the Judge properly decided the application on the basis of the legal aid position at the time and reserved leave for the appellant to apply to vary the order for security if legal aid was restored. The Minister also points out that the LSA contains specific procedures by which an applicant can ask for reconsideration and review of a decision not to grant legal aid.17 There is nothing to indicate that Mr Ibrahim is pursuing that avenue, so he is in no position to raise natural justice arguments about the process of the Agency.[15] Finally, the Minister submits that the Judge was right to find that the application for review faced significant hurdles. In Phan v Minister of Immigration, the High Court held that judicial review was excluded by s 10(3) of the Immigration Act 1987, which limited review of the discretionary decision whether to grant a visa in certain circumstances.18 Mr Ibrahim already had a right of appeal against the decision of the immigration officer, which he exercised. The Minister then has an absolute discretion as to whether to intervene.19 Even under the Immigration Act 1987, which did not contain an equivalent to s 187(8), Chambers J held that theMinister's decision whether to intervene was a discretionary policy decision at theend of, or even outside, of any legal process and was virtually unreviewable.20Discussion[16] Mr Ibrahim filed an affidavit in this Court which details, among other things, his financial circumstances. He deposes that he has been unable to find full time work in Egypt and relies on Hajira to send him money. Counsel who represent him are acting on a pro bono basis. As the Judge did in the High Court, I assume for the purposes of this application that Mr Ibrahim is unable to pay security for costs and, hence, will be unable to pursue the appeal unless the ordinary requirement that an appellant pay security is dispensed with. On its own, however, that is not an exceptional circumstance sufficient to justify waiver of security.17 LSA, ss 51 and 52.18 Phan v Minister of Immigration [2010] NZAR 607 (HC).19 Immigration Act 2009, ss 72(3) and 378.20 Yure v Bentley HC Auckland M1530-PL01, 8 November 2001.[17] While there is no suggestion that Mr Ibrahim does not honestly intend to pursue the appeal, in my view it is unlikely to succeed. The Judge's decision torequire security to be paid under r 5.45 was a discretionary one.21 As such, it could only be altered by this Court on appeal if it found that the Judge made an error of law or principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong.22 None of those criteriaappear to be met. The Judge's preliminary assessment of the merits of thesubstantive appeal was clearly right; given the clear wording of s 187(8), the absolute discretion conferred on the Minister by s 378 of the Immigration Act and the effect of decisions such as Phan, the prospect of Mr Ibrahim's application forreview succeeding was slight. In this regard I also note that s 187(8) does not deprive applicants for residency of any ability to challenge the refusal of their application. There is a right of appeal against the decision of an immigration officer to decline the application, which Mr Ibrahim has exercised unsuccessfully. His appeal to the discretion of the Minister was, in effect, a last resort. In those circumstances, the Judge was entitled to conclude that the Minister ought to be protected in respect of costs.[18] It is regrettable that Mr Ibrahim will likely be unable to pursue his judicial review application if the order for security in the High Court remains. However, as this Court noted in McLauchlan, r 5.45 clearly anticipates that an order for security might have that effect.23 Under r 5.45(1)(b) a judge can order payment of security ifthere is reason to believe the plaintiff will be unable to meet the defendant's costs inthe event that the plaintiff is unsuccessful. Where that is the case the plaintiff will often be unable to provide security. Accordingly, the fact that an order will or may have the effect of bringing the judicial review proceedings to an end does not mean that McKenzie J's decision was wrong.[19] Finally, the appeal does not raise any issues of particular novelty or importance. While it may be true that the interpretation of s 187(8) has not yet been considered, the courts have addressed other provisions purporting to exclude a right21 A S McLachlan, above n 3, at [13].22 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].23 A S McLachlan, above n 3, at [15].of judicial review in respect of immigration decisions and concluded that, despite the NZBORA, the exclusion was effective.24 Similarly, the ability of the High Court to order security for costs in respect of judicial review applications is well established.25The context of any particular application for review is a matter to be taken into account by the Judge when considering whether, in terms of r 5.45, it is just in all the circumstances to make an order for security.[20] For those reasons, the appeal does not involve any exceptional circumstances sufficient to justify waiver of security. However, given Mr Ibrahim's impecuniosityand the particular context of this appeal, I consider that it is appropriate to make a significant reduction in the amount of security required. Accordingly, security is reduced by 75 per cent, to $1,390.Decision[21] The application for review of the Acting Registrar's decision not to dispense with security for costs is declined. However, the amount of security required is reduced from $5,560 to $1,390, which must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.Solicitors:Woods Fletcher & Associates, Wellington for AppellantCrown Law Office, Wellington for Respondent24 See Phan v Minister of Immigration, above n 18.25 See, for example, Easton v Wellington City Council, above n 9; Copping v Nursing Council ofNew Zealand HC Auckland CIV-2008-404-7576, 27 November 2009; Ngati Muriwai Hapu Inc vWhakatohea Maori Trust Board Inc HC Wellington CIV-2007-463-30, 29 November 2007.