SC v. TORTURE CLAIMS APPEAL BOARD

HCAL 99/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 99 OF 2014

_____________

_______________________

DECISION ON COSTS

_______________________

1. This is a decision on costs in respect of the present judicial review proceedings.  On 6 January 2015, I made an order in terms of the draft consent order attached to the statement disposing of this application for judicial review by consent leaving the outstanding question of costs to be dealt with by way of written submissions to be filed by the parties.

2. There has been some delay in the handing down of this Decision on Costs.  After receiving the written submissions, I was given to understand that there were quite a number of cases dealing with similar issues on costs.  One of these cases is the subject of an appeal[1], and it would be more desirable for me to wait for further guidance from the Court of Appeal before handing down this Decision on Costs.  However, it seems that the appeal has yet been fixed for hearing, and so it would not be right to keep the parties waiting any longer for this Decision.

Background information

3. The Applicant arrived in Hong Kong on 27 June 2002 as a visitor on the strength of a Sri Lankan passport.  On 23 July 2004, he was arrested by the Police for overstaying.

4. On 18 November 2004, the Applicant was convicted of giving false information to attempt to mislead a police officer with intent, using a forged identity card and breach of condition of stay (overstaying) and was sentenced to 16 months’ imprisonment.

5. By written representations dated 19 May 2005, the Applicant raised a torture claim.[2]

6. On 10 June 2005, upon completion of imprisonment, the Applicant was referred to the Immigration Department for detention.  Having reviewed the Applicant’s detention, the Applicant was released on recognizance on 7 July 2005.

7. In the meantime, his torture claim was screened under the pre-FB[3] screening mechanism.  During the period from 19 May 2005 to 24 October 2006, a total of 14 interviews for the assessment of the Applicant’s torture claim were conducted.

8. On 29 September 2008, the Applicant was arrested by the Police for the offence of breach of condition of stay by taking up unapproved employment and was convicted on 12 November 2008 and sentenced to 5 weeks’ imprisonment.

9. On 13 November 2008, the Applicant was referred to the Immigration Department upon completion of his imprisonment.  Having reviewed the Applicant’s detention, he was released on recognizance on 27 November 2008.

10. Following the judgment of FB v Director of Immigration & Anor[4], screening of torture claims, including the Applicant’s, was suspended in December 2008 until 24 December 2009 when the then enhanced screening mechanism was put into place, and the Applicant was informed of the resumption of the screening of his torture claim on 6 January 2010.

11. As part of the screening process, the Applicant, through his legal advisers, submitted the questionnaire together with the other relevant supporting documents to the Immigration Department for consideration.  He also attended a number of interviews.

12. On 15 July 2013, a Notice of Decision was issued refusing the Applicant’s torture claim by the Director of Immigration (“the Director”) and delivered to the Applicant through the Duty Lawyer Service (“DLS”).

13. On 19 August 2013, the Applicant’s Notice of Appeal dated 2 August 2013 in relation to his torture claim was lodged.

14. On 18 February 2014, the Applicant’s appeal was dismissed by the Torture Claims Appeal Board (“the Board”) without a hearing.

The present proceedings

15. By the Notice of Application for Leave to Apply for Judicial Review filed on 18 August 2014, the Applicant sought leave to challenge the decision of the Board dated 18 February 2014 (“the Decision”) on the following grounds:

(1) the Decision to confirm the immigration officer’s rejection of the Applicant’s torture claim was unlawful and/or unreasonable and/or conspicuously unfair;

(2) the Decision was procedurally improper in the context of the high standard of fairness required for the determination of torture claims; and

(3) the Decision failed to honour or give effect to the Applicant’s legitimate expectation that his torture claim would be assessed and determined with high standard of fairness.

16. Following consideration of the documents, leave to apply for judicial review was granted by me on 25 September 2014 for the Applicant to challenge the Decision.

17. On 7 October 2014, an Originating Summons was issued pursuant to O 53 r 5 of the Rules of the High Court (Cap 4A), naming the Board as the Respondent and the Director as the Interested Party to these proceedings.

18. The Board, by way of a letter to the court dated 14 October 2014, confirmed that they intended to take a neutral stance and would abide by any decision and order of the court in these proceedings and asked to be excused from attending any hearing of the application.

19. The substantive hearing of the proceedings was originally fixed to be heard on 12 May 2015.

20. An agreement to the disposal of these proceedings was reached between the Applicant and the Director save and except the issue of costs to be dealt with by way of written submissions to be filed by the parties.  The Applicant rejected the Director’s proposal for no order as to costs.

21. The statement together with the draft consent order were then filed on 23 December 2014 pursuant to Practice Directions SL3 §23. On 6 January 2015, I made a consent order quashing the Decision of the Board and remitted the Applicant’s torture claim to the Board for determination afresh.

The recent English decisions

22. The Applicant argues that the costs of this application for judicial review should be paid by the Director.  Firstly, as the Director has been the respondent in substance, the Director has taken an active part in the present proceedings.  Secondly, the Applicant should be awarded costs as he has obtained substantively all the relief sought.

23. In opposing the application, the Director argues that it is not fair or right to ask the Director to pay for the costs.  It is the Board’s Decision which was impugned and so the Applicant should not be considered as a successful party against the Director.  The Director was only named as the Interested Party in these proceedings.  Since the commencement of the proceedings, the Director has not taken any steps to oppose the application and has been acting fairly and reasonably in trying to settle the case as soon as possible.  Under such circumstances, there should be no order as to costs vis-à-vis the Applicant and the Director.

24. In support of the Director’s contention, Ms Cynthia Fung, Government Counsel, has referred me to the decisions of RA v Betty Kwan, Adjudicator & Anor[5] and B, P, H, A, S v Torture Claims Appeal Board & Anor[6], in which A Chan J and Au J respectively made no order as costs vis-à-vis the applicants and the Director in similar circumstances.

25. Mr P Y Lo, counsel for the Applicant, acknowledges that the practice of the Hong Kong courts is that where the respondent does not take an active part in the judicial review proceedings and has indicated that it would abide by the order of the court, costs should not be ordered against the respondent.  There is also a reference in Hong Kong Civil Procedure 2015 on the position in England and Wales that “it will only be in exceptional cases that a party to an application who neither appears nor contests the application will be required to pay costs”, citing an English decision in 1968.[7]

26. However, Mr Lo submits that this position is now outdated in view of the latest English decisions.

27. In R (Boxall) v Waltham Forest London Borough Council[8], Scott Baker J discussed the question of what costs order to make where judicial review proceedings are, for one reason or another, concluded without a full hearing.  Having considered the authorities, the judge deduced a number of principles:[9]

“(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) it will ordinarily be irrelevant that the claimant is legally aided.

(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost.

(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) in the absence of a good reason to make any other order the fall back is to make no order as to cost.

(vi)  the court should take care to ensure that it does not encourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”

28. In R (Scott) v Hackney London Borough Council, Hallett LJ also observed that “a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate … A judge must not be tempted too readily to adopt the fall back position of no order for costs”.[10]

29. The English Court of Appeal considered specifically the question of costs where judicial proceedings were settled by consent of the parties in R (M) v Croydon London Borough Council[11]. Lord Neuberger MR, giving the principal judgment, noted that the Boxall guidelines pre-dated the Pre-Action Protocol for Judicial Review, which requires the claimant to send a letter to the defendant before action to identify the issues in dispute and to explore whether litigation can be avoided.

30. The English Court of Appeal allowed the appeal and ordered costs in favour of the asylum-seeker.  The court held that the general rule in civil litigation that a successful party who obtains all the relief he sought, whether by consent or after a contested hearing, is entitled to be paid his costs by the unsuccessful party unless there is good reason to the contrary, applies in judicial review proceedings as much as to other parts of the civil justice system and it makes no difference that a defendant is a public body.  However, each case turns on its own facts so that a case may have an unusual feature which can justify departing from what would otherwise be the appropriate costs order.

31. In respect of the potential tension between the aforesaid dicta with the fifth guideline in Boxall suggesting the default position to be no order as to costs, Lord Neuberger said:[12]

“[where] … a claimant obtains all the relief which he seeks, whether by consent or after a contested hearing, he is undoubtedly the successful party who is entitled to all his costs, unless there is a good reason to the contrary. However, where the claimants obtains only some of the relief which he is seeking (either by consent or after a contested trial) … the position on costs is obviously more nuanced. Thus ... there may be argument as to which party was more ‘successful’ (in light of the relief which was sought and not obtained) or, even if the claimant is accepted to be the successful party, there may be an argument as to the importance of the issue, or costs relating to the issue, on which he failed.”

32. In AL (Albania) v Secretary of State for the Home Department[13], the English Court of Appeal considered the question of costs in the context of appeals from the Upper Tribunal (Immigration and Asylum Chamber)(“the Upper Tribunal”) in immigration and asylum matters to the Court of Appeal disposed of by consent after permission to appeal was granted, whereby the appellant has obtained a benefit such as a remittal.

33. In the judgment, Maurice Kay LJ, having summarised and considered the relevant cases on costs in judicial review, determined that for statutory appeals from the Upper Tribunal where the appellant obtains the very relief sought such as a remittal, there is no justification of a default position of “no order as to costs” and it would be rare for the court to decide not to make a positive costs order, the fact that the obtaining of the relief is by consent is not a ground for refusing costs.[14]  If the appellant is clearly identified as the successful party, he is usually entitled to his costs.[15]  The court nevertheless acknowledged that there may be circumstances in the particular case that justify a different order.

34. In Emezie v Secretary of State for the Home Department[16], Sir Stanley Burnton indicated that Boxall “must now be considered no longer to be authoritative in the light of the most recent guidance in M v Croydon” and the starting point now “is whether the claimant has achieved what he sought in his claim”.[17]

35. In this judicial review, the Director has consented for the Decision to be quashed and the Applicant’s torture claim be remitted back to the Board for a fresh determination.  Mr Lo submits that as the Applicant is clearly the successful party and has obtained the relief he sought, he should get the costs of the present proceedings.  Unfortunately, Ms Fung has not made any reply to the recent English authorities submitted by Mr Po, and so the assistance I get from the Director’s legal representatives is rather limited.

Discussion

36. Whilst I acknowledge that there is a growing trend to award costs to successful applicants in immigration matters in England, I have serious doubt as to whether the Hong Kong courts should follow the same path.

37. Firstly, as observed by Maurice Kay LJ in AL[18], M’s case turned in part on compliance or non-compliance with the pre-action protocol relating to judicial review proceedings in England.  Hong Kong has no similar protocol.

38. Secondly, there are significant differences in such kind of proceedings between the two jurisdictions.  In England, any person who is dissatisfied with the decision of the Home Office relating to immigration matters can appeal to the First-tier Tribunal (Immigration and Asylum) (“the FT Tribunal”).  There are detailed procedural rules governing the proceedings before the FT Tribunal and it can award costs in favour of either party in the proceedings.  Any appeal from the FT Tribunal would be to the Upper Tribunal on a point of law only.  Leave to appeal has to be obtained from the FT Tribunal.  In the case of refusal to grant leave, leave application can then be made to the Upper Tribunal.  Again, the Upper Tribunal has detailed rules to govern its proceedings and power to award costs.  Any further appeal would be to the Court of Appeal subject to the same leave restriction.

39. As observed by Maurice Kay LJ in one of the appeals in AL, there would have been substantial costs incurred before the case reaches the Court of Appeal.[19] More importantly, by reason of the structure of appeal system, the Home Office must have taken considerable steps to oppose the applicant’s request before the case reaches the Court of Appeal.

40. In Hong Kong, any claimant who is not satisfied with the decision of the immigration officer relating to his or her torture claim can appeal to the Board.  Duty lawyers are provided to the claimants to conduct their appeals if they so request.

41. In order to maintain a high standard of fairness, the appeal before the Board is in substance a rehearing of the torture claim.  The Board has no power to award costs to either party, and the question of costs has never been an issue until the applicant further challenges the decision of the Board by way of judicial review.

42. Thirdly, although whether the applicant is legally aided is generally irrelevant, the English Court of Appeal did take that matter into consideration in AL.[20] In England, the level of remuneration for lawyers is different between a legal aid and an inter partes determination of the costs.  Coupled with the reduction in the legal aid rates in England, a refusal to order costs in favour of a successful or partially successful appellant can lead to a contraction of the availability of competent legal advice and representation and a reduction of access to justice.  There is no such consideration in Hong Kong.

43. Taking into account the aforesaid differences, I decline to follow the approach adopted by the English courts.

44. In Hong Kong, the case law has established that the Board has to observe a high standard of fairness, and so the appeal before the Board is in substance a rehearing of the applicants’ torture claims.  The Director is therefore right in saying that it is not the Director’s decision but the Board’s decision that is being impugned.

45. In the present case, after the Applicant has commenced the judicial review application to challenge the Board’s decision, the Director has not taken any active steps to contest the proceedings after the granting of the leave by the court.  The question of costs has never been an issue until this stage.  Coupled with the fact that the inter partes costs order would not have any effect on the legal fees recovered by lawyers in the legal aid taxation, I do not consider it fair or just to order the Director to pay for the costs of the Applicant.

46. Mr Lo submits that the reason as to why the Director agreed to dispose of the judicial review application by consent is because of the decision in ST v Betty Kwan in June 2014, in which the Court of Appeal gave guidance as to the proper conduct of the appeals before the Board including the need to hold oral hearings.  In other words, the Director agreed to concede the judicial review by reason of the new legal authority relating to the conduct of the appeals before the Board and not the proceedings before the immigration officer.  In fact, Hong Kong is still in the development phase of the jurisprudence relating to torture claims, and the Director is facing tremendous pressure both in handling the vast number of torture claims and in conducting the screening process in accordance with the latest standard set by the courts.  In any event, as the reason for conceding the application is probably related to an “error” made by the adjudicator of the Board in conducting the appeal, even if the Applicant has obtained an order to remit the torture claim back to the Board for a fresh adjudication, I do not consider it appropriate to order costs against the Director.

47. The appeal in KMM v The Torture Claim Appeal Board & Anor[21] will be heard soon and I am sure that the Court of Appeal will give further guidance in this area of the law.  Before the delivery of the appellate judgment in that case, I can only decide this application based on the existing authorities.

48. For the above reasons, I order that, save the Applicant’s own costs to be taxed in accordance with Legal Aid Regulations, there be no order as to costs of these proceedings.