M V REFUGEE STATUS APPEALS AUTHORITY COA CA653/2010

M V REFUGEE STATUS APPEALS AUTHORITY COA CA653/2010 [23 March 2012]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDCA653/2010[2012] NZCA 83BETWEEN MAppellantAND REFUGEE STATUS APPEALSAUTHORITYFirst RespondentAND CHIEF EXECUTIVE OF THEDEPARTMENT OF LABOURSecond RespondentCA10/2011AND BETWEEN MAppellantAND DEPARTMENT OF LABOURRespondentCA587/2011AND BETWEEN MAppellantAND MINISTER OF IMMIGRATIONRespondentHearing: 6 March 2012Court: O'Regan P, Randerson and Stevens JJCounsel: Appellant in PersonM G Coleman and R J Hoare for RespondentsJudgment: 23 March 2012 at 4.00 pmJUDGMENT OF THE COURTA The appeals in CA653/2010 and CA10/2011 are struck out.B The appellant must pay one set of costs of the respondents as for a standard application for leave to appeal on a band A basis and usual disbursements.C In respect of appeal CA587/2011, the time for paying the sum of $2,780.00 for security for costs is extended to the date of actual payment, namely, 20 March 2012. The application by the respondent to strike out the appeal is dismissed.D On the application in respect of appeal CA587/2011 there will be no order as to costs against the respondent.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] The respondents in three appeals brought by M have applied to strike out all of them based on M's failure to comply with an order (in each case) to pay securityfor costs.1Appeals CA653/2010 and CA10/2011[2] The substantive appeals in CA653/2010 and CA10/2011 can conveniently be dealt with together. On 23 April 2010 the Refugee Status Appeals Authority (RSAA) declined to recognise M as a refugee. M applied to the High Court for judicial1 Court of Appeal (Civil) Rules, r 37(1).review of that decision but the application was declined by Courtney J.2 The Judge considered that the conclusion of the RSAA that M had not established any well- founded fear of persecution if he were returned to his home country was "entirely justified".3[3] M had been working in New Zealand under a series of temporary work permits. Following the decision of the RSAA, the Department of Labour revoked his then most recent work permit. M applied for judicial review of the Departmentof Labour's decision. That application was heard at the same time as the applicationfor review of the decision of the RSAA but was the subject of a separate judgment.4The application was dismissed by Courtney J as M had not identified any basis for his claim that the decision to revoke the work permit was unlawful.[4] M filed appeals against both of the decisions of Courtney J. He applied for dispensation from the requirement to pay security for costs in each case.5 He argued that he was financially unable to pay the security in each case, that the appeals had merit and that he had a right of access to justice. The Acting Registrar declined each application for dispensation, but reduced the amount of security to be paid from $5,560.00 to $2,780.00 for each appeal. M applied to review these decisions.[5] The application for review was dismissed by Arnold J,6 who considered thatthe appeals "have little prospect of success".7 He also concluded that the public interest was not engaged in relation to these appeals. Neither raised any novel or important issue which was in the public interest to determine.8 Accordingly, Arnold J considered that M had not raised any exceptional circumstances sufficient to justify a departure from the ordinary requirement to pay security for costs in eachcase. Arnold J found that the respondents "should not face the threat of meritless appeals without provision for security".92 M v Refugee Status Appeals Authority HC Auckland CIV-2010-404-3298, 17 September 2010.3 At [40].4 M v Department of Labour HC Auckland CIV-2010-404-4360, 21 December 2010.5 Court of Appeal (Civil) Rules 2005, r 35(6)(c).6 M v Refugee Status Appeals Authority [2011] NZCA 327.7 At [12].8 At [13].9 At [14].[6] Having dismissed the application for review in each appeal, Arnold J directed that M pay security for costs of $2,780.00 in relation to each appeal within 20 working days of the date of the judgment. That direction was made on 19 July 2011.Appeal in CA587/2011[7] The substantive appeal in CA587/2011 concerned a refusal by the Minister ofImmigration to allow M's wife and child, who reside in Australia, to visit him inNew Zealand. M issued proceedings in the High Court but the statement of claim was struck out by Courtney J as being untenable.10[8] M appealed to this court. As with the two other appeals M sought to have security for costs dispensed with. The Acting Registrar determined that it was not appropriate to waive security. However, as with the other appeals, on the basis ofM's financial circumstances, he directed that a reduced amount of security in the sum of $2,780.00 was appropriate. M again sought a review of the ActingRegistrar's decision.[9] The application for review was considered by Chambers J, who determined that the application for review should be dismissed.11 Chambers J considered that"the chances of success are slight".12 He also considered that this appeal "raises no particular matter of public interest".13 The Judge ruled that the Acting Registrar had acted appropriately by reducing the required amount of security by half. M was therefore directed to pay security for costs of $2,780.00 for this appeal within 20 working days of 8 November 2011.Challenges in the Supreme Court[10] In terms of the challenges to the respective decisions by the Acting Registrar, M sought to challenge the judgment of Arnold J in the Supreme Court. The Supreme Court twice declined applications for extension of time for leave to appeal the10 M v Minister of Immigration [2011] NZFLR 977 (HC).11 M (CA587/2011) v Minister of Immigration [2011] NZCA 565.12 At [5].13 At [6].decision of Arnold J as to security. The Supreme Court also declined leave to appeal the security order made by Arnold J and a refusal by Arnold J to recall his decision.14[11] M also sought leave to appeal the decision of Chambers J to the Supreme Court. Although the leave application focussed on a proposed direct appeal to theSupreme Court from Courtney J's judgment in the High Court, the Supreme Courttreated the application as including an application for leave to appeal the decision of Chambers J and declined to grant leave.15Developments post hearing[12] M filed detailed submissions opposing the applications. At the hearing, M accepted that he had no prospects of paying any of the three amounts of $2,780.00. All of the income from his current employment is taken up with living expenses and payments for his wife and child.[13] Shortly after the hearing, M sent an email to the Court Registry indicating a potential change in circumstances regarding the payment of security for costs of $2,780.00 in respect of the appeal in CA587/2011. We issued a minute on 13 March 2012 advising that we proposed to defer issuing a judgment for seven days. M was directed, if he proposed to pay the security in CA587/2011, to pay that sum no later than 5.00 pm on 20 March 2012.[14] The amount of security for costs in the sum of $2,780.00 was paid by M in respect of CA587/2011 in accordance with the above direction. We now proceed to issue our judgment. In so doing, it is necessary to distinguish between CA587/2011 and the other two appeals.14 M v Refugee Status Appeals Authority [2011] NZSC 143.15 M v Minister of Immigration [2011] NZSC 154.DiscussionAppeals CA653/2010 and CA10/2011[15] It will be apparent from the above that M has gone to considerable lengths to challenge the original decision of the Acting Registrar in each case. All challenges have been rejected. In terms of the merits of the two appeals, it is not appropriate for us to go behind the conclusions reached by Arnold J. M sought at the hearing to persuade us that the appeals had merit, but the decision of Arnold J on security is now final. In any event, nothing M submitted provided any basis for considering that the determinations as to the merits of the two High Court judgments needed to be reviewed.[16] The short point is that M has been directed by a Judge of this Court to pay the reduced amount of security in the sum of $2,780 in relation to each of the two appeals. That amount has been outstanding in the case of the two appeals since 20 working days after 19 July 2011.[17] Having regard to the extensive steps already taken to review the decisions of the Acting Registrar, the lack of merit in respect of each of the appeals and the fact that M has no resources to meet the three amounts of security, we are satisfied that the two appeals should be struck out. We therefore order that the appeals in CA653/2010 and CA10/2011 be struck out.[18] The appellant must pay one set of the costs of the respondents calculated as for a standard application for leave to appeal on a band A basis and usual disbursements.Appeal CA587/2011[19] As already noted, the amount for security for costs for this appeal has finally been paid. Although it was paid late, in breach of the direction of Chambers J noted at [9] above, it was paid within the time fixed in our minute of 13 March 2012.[20] As the only ground advanced by the respondent for striking out the appeal was non-payment of the sum ordered for security for costs, payment of that sum removes the substratum of the application. The application must fail.[21] The respondent's application to strike out CA587/2011 is dismissed.Although M has succeeded in opposing the application, he is not entitled to costs since the security was not paid until after the respondent had reasonably incurred the cost of bringing this application. Accordingly there will be no order for costs against the respondent. Given our award of costs in favour of the respondents on the other two appeals, we make no further award of costs in favour of this respondent.Solicitors:Crown Law Office, Wellington for Respondents