FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 611

FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 611 [6 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002453[2018] NZHC 611UNDER The Judicial Review Procedure Act 2016,Judicature Amendment Act 1972, Part 30 ofthe High Court Rules, DeclaratoryJudgments Act 1908 and the New ZealandBill of Rights Act 1990IN THE MATTER Of an application for judicial review,extraordinary remedies, interim relief,declaratory remedy and claim for breach ofrightsBETWEEN MINGBO FANGApplicantAND MINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: On the papersCounsel: D Zhang for ApplicantI C Carter for RespondentJudgment: 6 April 2018COSTS JUDGMENT OF WHATA JThis judgment was delivered by me on 6 April 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors:Amicus Law, AucklandCrown Law, Wellington[1] Mr Fang was deported on 26 January 2018. Prior to his deportation, Mr Fangcommenced judicial review proceedings seeking to review an alleged decision madeby Immigration New Zealand (INZ) to refuse to reconsider whether Mr Fang'sdeportation order should be cancelled pursuant to s 177 of the Immigration Act 2009.This alleged decision is purportedly recorded in a letter dated 9 October 2017.Mr Fang sought a declaration that the decision was unlawful and unreasonable. ButINZ wrote to Mr Fang on 29 November 2017 stating that a further decision as towhether to cancel his deportation would be made prior to any deportation. Therefore,assuming the 9 October letter recorded an unlawful decision, it had no material effectas at 29 November 2017.[2] Unsurprisingly, given these background facts, interim orders were refused byDowns J. The matter then came before me, even though Mr Fang had been re-interviewed, as promised, prior to his deportation. I signalled to Mr Fang's counselthat his application had little prospect of success. Mr Fang then discontinued theproceeding.[3] The respondent now seeks costs on an increased or indemnity basis.[4] In a lengthy memorandum, Mr Zhang, for Mr Fang, submits in summary:(a) Any decision on costs should be understood in the broader context,including the fact that Mr Fang succeeded in an appeal of previousjudicial review proceedings.(b) He pursued his present application in good faith and on the basis, inshort, that INZ had pre-determined to deport him.(c) He sought to settle the matter by letter dated 26 January 2018, notingthat Mr Fang was prepared to withdraw his judicial review applicationbecause, among other reasons, an interview was being offered to him,as had been sought by Mr Fang.(d) The proceedings concerned matters of public interest, namely, the rightto an ROPC interview.(e) His claim was not completely hopeless because:(i) There was some uncertainty as to whether a second interviewwould be offered;(ii) Mr Fang believed that INZ's offer on 29 November 2017 waswindow dressing;(iii) INZ's letter demanding a discontinuance on 1 February 2018,without prejudice save as to costs, was not in fact an offer – itwas little more than INZ putting to Mr Fang that his case washopeless; and(iv) There was no flagrant misconduct by Mr Fang.(f) A costs order may preclude Mr Fang from being able to return to NewZealand.[5] Mr Zhang also submits that if I accept that increased costs should be awarded,the quantum should be reasonable in the circumstances.[6] MBIE seeks indemnity costs on the basis that Mr Fang acted unnecessarily inbringing the proceedings and pursuing them to a hearing. Failing that, increased costs– a 50 per cent uplift on a 2B basis – is sought.[7] It is submitted, in short:(a) Mr Fang's claim was hopeless as it was brutally clear that INZ wouldgive an opportunity for Mr Fang to provide updated information priorto his deportation – this being the central purpose and complaint raisedby the proceedings.(b) To the extent there was any doubt about this, it was explicitlymentioned in the 29 November letter from INZ which states that anyupdated information would be considered prior to any deportation.(c) Mr Fang's overstaying was flagrant.Assessment[8] Plainly, MBIE is entitled to costs. It effectively succeeded at every step. Theclaim as initially filed was not completely without merit. Mr Fang's concern about'fait accompli' decision making was, in part, understandable (though not meritorious)given the wider background. But, from 29 November 2017, Mr Fang's case was veryweak and from the further interview, bound to fail.[9] On that basis:(a) MBIE is entitled to its costs on a 2B basis for all steps up to29 November 2017; and(b) Increased costs of 50 per cent from 29 November 2017.[10] I refuse increased costs before 29 November 2017 and indemnity costs fromthat date because of the vulnerability of persons in Mr Fang's position and theimportance of not unduly discouraging such persons from commencing proceedingsrelating to their ability to reside in New Zealand. What appears hopeless may, on closerscrutiny, prove not so. Here, however, closer scrutiny did not improve Mr Fang'sposition and his failure to acknowledge the inherent weakness of his case causedunnecessary cost.[11] For completeness:(a) Mr Fang's offer to withdraw in January 2018 does not mitigate theegregiousness of his position. It was effectively an offer subject toterms, including a costs payment of $3,000 and an extension of time forcounsel to prepare for an interview.(b) I am not prepared to speculate on whether Mr Fang will be inhibited onre-entry by the costs order.[12] There shall accordingly be a costs order in favour of MBIE. If not agreed,quantum is to be fixed by the Registrar.