JE (INDIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2023] NZCA 128

JE (INDIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2023] NZCA 128 [28 April 2023]NOTE: THE TRIBUNAL ORDER PROHIBITING PUBLICATION OF THEAPPLICANT'S NAME AND IDENTIFYING PARTICULARS REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA91/2021[2023] NZCA 128BETWEEN JE (INDIA)ApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentCHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentCA92/2021BETWEEN JE (INDIA)ApplicantAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCourt: Brown and Collins JJCounsel: B Castelino for ApplicantK Laurenson and A P Lawson for Immigration and ProtectionTribunalI M G Clarke and E J Cameron for Chief Executive of Ministry ofBusiness, Innovation and EmploymentJudgment:(On the papers)28 April 2023 at 9.30 amJUDGMENT OF THE COURTThe application to reduce or waive costs is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] JE applies under r 53F of the Court of Appeal (Civil) Rules 2005 (the Rules)for either a reduction or waiver of costs.[2] JE is a citizen of India. She has lived in New Zealand since November 2016,holding various visas, the last of which expired on 13 December 2019. At that point,JE became liable for deportation under the Immigration Act 2009 (the Act).[3] JE unsuccessfully appealed against her liability for deportation to theImmigration and Protection Tribunal (the Tribunal). JE then sought leave to appealand/or judicially review the Tribunal's decision. The High Court declined bothapplications, holding there was not a question of law for the Court to consider, nor wasthere an issue that was seriously arguable that required intervention from the Court.1[4] JE then sought leave to appeal that decision to this Court on both the appealand the judicial review decisions. Those applications were declined on 9 July 2021.2[5] Costs were ordered in the High Court in respect of the declined applicationsfor leave to appeal and to bring judicial review.3 Costs were also ordered in respect ofa separate proceeding.41 JE (India) v Immigration and Protection Tribunal [2021] NZHC 91.2 JE (India) v Immigration and Protection Tribunal [2021] NZCA 307.3 JE (India) v Immigration and Protection Tribunal [2021] NZHC 774. Campbell J ordered costsof $8604.00 together with disbursements of $1,402.10, totalling $10,006.10.4 JE (India) v Minister of Immigration [2021] NZHC 3482. Wylie J ordered costs of $17,686.00together with disbursements of $141.82, totalling $17,827.82.[6] Following its decision declining leave to appeal, this Court reserved itsdecision on costs. This Court directed that counsel for JE was to advise the Courtwhether JE was in receipt of legal aid, and whether there was any other reasons whycosts should not follow the event. JE then applied for a waiver of costs on the basisof financial hardship. JE's application is opposed by the Chief Executive of theMinistry of Business, Innovation and Employment.Applicant's submissions[7] JE submits that costs should be waived on the basis that she is experiencingfinancial difficulties. Her supporting affidavit details this, including descriptions ofbeing unable to pay for food, accommodation, and legal fees.Analysis[8] Rule 53F(g) of the Rules provides a general authority for this Court to refuseor reduce costs.[9] High Court authority has established, in relation to an equivalent provision inthe High Court Rules 2016, that:5Financial hardship is not an answer to a claim for costs; and when financialhardship is asserted a sworn affidavit of the party's means is ordinarilyrequired before a request for waiver or reduction will be entertained. Theabatement of costs for personal circumstances is not typically justified and isreserved only for exceptional circumstances.[10] Similar considerations apply to applications under r 53F(g) of the Rules.[11] Although sworn, JE's supporting affidavit did not provide any evidence ofimpecuniosity, merely JE's assertions thereof.[12] JE has failed to provide sufficient evidence that demonstrates financialhardship that would justify waiver or reduction of costs.5 NM (Fiji) v Minister of Immigration [2020] NZHC 2729 at [8] citing Singh v Immigration andProtection Tribunal [2014] NZHC 2065. See also; BR (Bangladesh) v Chief Executive, Ministryof Business, Innovation and Employment [2018] NZHC 902 at [7]; and HA v Refugee andProtection Officer [2018] NZHC 1011.Result[13] The application to reduce or waive costs is declined.Solicitors:Castlefinn Law Ltd, Auckland for ApplicantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondents