ORJI v MINISTER OF IMMIGRATION [2016] NZHC 2801

ORJI v MINISTER OF IMMIGRATION [2016] NZHC 2801 [23 November 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-485-000567[2016] NZHC 2801BETWEEN JEFFREY ORJIApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: (On the papers)Counsel: Rowland Woods for the ApplicantRebecca Savage and Olivia Klaasen for the RespondentJudgment: 23 November 2016COSTS JUDGMENT OF MOORE JThis judgment was delivered by me on 23 November 2016 at 10:00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:[1] This is an application for standard costs. However, the background out of which it arises is somewhat unorthodox.[2] Mr Orji is originally from Nigeria. He first entered New Zealand in 2002 by using a false or forged passport. He applied to remain in New Zealand through a number of avenues but was wholly unsuccessful to the point that his remaining in this country ultimately came down to an application for residence status first filed on 14 October 2005. That application remained in abeyance for a long period as a result of criminal proceedings commenced against Mr Orji in relation to his earlier identity fraud. Eventually, on 24 January 2009, Immigration New Zealand declined it. Mr Orji then lodged a humanitarian appeal with the then Removal Review Authority. However, this too languished after he was sentenced to two years and nine months' imprisonment following his conviction. After his release, he re-activated the appeal. It, too, was eventually dismissed by the Immigration and Protection Tribunal ("the IPT") the successor of the Removal Review Authority.[3] Mr Orji then sought leave to appeal the IPT's decision under s 245 of the Immigration Act 2009. He was granted legal aid. On 10 June 2016, his application was dismissed by Keane J in this Court.[4] The Minister now seeks 2B costs in regards to this application. This totals some $8028 plus $160 in disbursements.[5] Section 45(2) of the Legal Services Act 2011 ("the Act") states that:"No order for costs may be made against an aided person in a civilproceeding unless the court is satisfied that there are exceptionalcircumstances."[6] Notwithstanding this provision, the Minister argues that a costs order may be made against Mr Orji because the initial decision to grant him legal aid was unlawful. This is because it was prohibited by the operation of s 12 of the Act, which relevantly provides that:"12 Other situations where legal aid refused or limited: civil matters(1) Subject to subsection (2), the Commissioner may not grant legal aid in respect of—(a) proceedings involving a decision under the Immigration Act 2009 in relation to a person who—(i) is unlawfully in New Zealand in terms of that Act; or(ii) is lawfully in New Zealand only by being the holder of a temporary entry class visa granted under that Act; or(iii) is not in New Zealand and—(A) is not a New Zealand citizen; or(B) does not hold a residence class visa granted under that Act;(b) proceedings involving a decision or matter under the Immigration Act 1987 in relation to a person who—(i) was unlawfully in New Zealand in terms of that Act; or(ii) not having been granted legal aid for the purpose of any particular proceedings in New Zealand before the person arrived in New Zealand, was lawfully in New Zealand only by virtue of being the holder of a temporary permit or a limited purposes permit.(2) Subsection (1) does not apply in respect of—(a) proceedings referred to in subsection (1)(b) for which a person was granted legal aid before the date fixed under section 2(1) of the Immigration Act 2009 for the coming into force of that Act; or(b) proceedings specified in section 7(1)(j) to (n) of this Act."[7] It is not disputed that Mr Orji was unlawfully in New Zealand at the time of theleave application and that, as a result, s 12 applies on its face. The Minister's case is thatby virtue of s 12 Mr Orji does not enjoy the protection of s 45(2).[8] Mr Woods, for Mr Orji, notes that regardless of the validity or otherwise of the grant of aid, Mr Orji was in fact a legally aided person under s 4 of the Act and has been at all material times. Under s 71(2), the power to make a decision regarding the grant of legal aid lies solely with the Legal Services Commissioner. He submits that a HighCourt Judge is unable to make this decision and that the relevant grant continues unless or until it has been withdrawn by the Commissioner through s 31(2).[9] I find I arrive at the same conclusion as Mr Woods albeit by a different route. The protection afforded by s 45(2) is extended to an "aided person" unless the Court issatisfied that there are exceptional circumstances. Section 4 states that an "aided person" means:"4 Interpretation(1) (a) a person who is granted legal aid under this Actor the former Act; and(b) includes (i) a person who is granted legal aid on an interim basis:(ii) a person whose grant of legal aid has been withdrawn under section 30."[10] Section 30(1)(c) provides that the Commissioner must withdraw legal aid granted in respect of a civil matter if he/she becomes aware that the aided person was not entitled to legal aid because section 12(1) applies and s 12(2) does not. Because the Commissioner has not already done so, the Act therefore requires him/her to invoke the withdrawal procedure set out in s 31 in respect of Mr Orji. However, whether or not this takes place, Mr Orji is (and will remain) an "aided person" for the purposes of the Acthaving initially received a grant of aid. He is therefore entitled to the protection of s 45(2) unless I consider there are exceptional circumstances.[11] Section 45(3) states that in determining whether there are exceptional circumstances under subsection (2), the court may take account, but is not limited to, the following conduct by the aided person:"45 Liability of aided person for costs...(3) (a) any conduct that causes the other party to incur unnecessary cost:(b) any failure to comply with the procedural rules and orders of the court:(c) any misleading or deceitful conduct:(d) any unreasonable pursuit of 1 or more issues on which the aided person fails:(e) any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:(f) any other conduct that abuses the processes of the court."[12] Neither party has drawn my attention to any fraudulent or improper conduct on the part of Mr Orji, or any other conduct of the sort which this section appears designed to capture. In the absence of full argument on the matter, I am not prepared to find that there exceptional circumstances engaged in this case.[13] I thus decline to make the costs order sought by the Crown.Moore JSolicitors:Rowland Woods Legal Ltd, WellingtonCrown Solicitor, Auckland