AGNR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 12/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2015

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DECISION ON COSTS

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A.   INTRODUCTION

1.  This decision concerns the costs of a settled judicial review.

2.  On 22 January 2015, the applicant applied for leave to judicially review (a) the decision of 1^st respondent (“the Director”) dated 19 December 2012 to refuse the applicant’s non-refoulement claim made under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”); and (b) the decision of the 2^nd respondent (“the TCAB”) dated 23 July 2013 to dismiss the applicant’s appeal from the Director’s decision.

3.  On 30 March 2015, this court granted leave to the applicant on paper, which leave was stated to be “without prejudice” to the Director and TCAB’s rights to (if they so intend) oppose the application also on the basis that there is no good reason to grant an extension of time to the applicant.

4.  On 3 June 2015, the Department of Justice (“DoJ”) by a letter to the applicant’s solicitors sought consent for a short extension of seven days for the Director to file and serve the evidence in reply.

5.  Also on the same day, a further DoJ letter was sent to the applicant’s solicitors proposing that in the light of the issue of delay involved in these proceedings and the appeal from AW v Secretary for Security & Ors (HCAL 91/2013, unreported, 26 January 2015) (“AW”) which had then been fixed to be heard before the Court of Appeal (CACV 63/2015) on 20 October 2015, the present proceedings, including the respondents’ filing of the evidence in reply, be stayed pending the resolution of the appeal in AW.

6.  The applicant rejected the aforesaid proposal, and the Director’s evidence in reply was then duly filed and served on 8 June 2015 pursuant to Order 53, rule 6(4) of the Rules of the High Court (Cap 4), viz the Affidavit of Lee Shuk Mei, the Affidavit of Lee Yeuk Yang Catelly, and the Affirmation of Chik Freddy Yu Fai and the exhibits thereto.

7.  The TCAB by way of a letter to the court dated 9 June 2015, confirmed that it intended to take a neutral stance and would abide by any decision and order of the court in these proceedings.

8.  On 19 June 2015, the DoJ issued a letter informing this court of the circumstances of these proceedings and the pending resolution of AW and seeking the court’s directions that these proceedings be stayed or, alternatively, the substantive hearing of these proceedings be fixed on a date not earlier than 30 November 2015 if the court sees fit.  The proposal was not raised earlier because the hearing date (20 October 2015) of the AW appeal was only fixed in early May 2015 and the DoJ took that into account in reviewing the Director’s position and way forward of the case before writing to the applicant’s solicitors in early June 2015 and then to the court.

9.  On 23 June 2015, this court directed, inter alia, that the substantive hearing of these proceedings shall be fixed on a date no earlier than 30 November 2015.

10.  On 30 October 2015, the Director issued an inter partes summons (“the Summons”) for an order that the ex parte leave granted be set aside on the ground of material non-disclosure by the applicant in his ex parte application for leave and/or delay.

11.  On 4 November 2015, a letter was sent by the DoJ to the applicant’s solicitors urging the applicant to reconsider his position and to consider withdrawing the present proceedings.

12.  On 9 November 2015, a letter was sent by the applicant’s solicitors to the court seeking a direction to the effect that the Summons be dealt with at the substantive hearing of these proceedings.  On the same day, the applicant’s solicitors wrote to the DoJ to suggest that these proceedings be stayed pending the processing of the applicant’s non‑refoulement claim on other applicable grounds under the Unified Screening Mechanism (“the USM”).

13.  On 16 November 2015, this court directed that “[g]iven it is suggested that the Applicant has applied under the USM to process his CIDTP and persecution claims, and in light of AW(CACV 63/2015), it is desirable that the Summons be heard first” and the hearing of the Summons was fixed for 17 February 2016 at 10 am with one hour reserved.

14.  In the meantime, the applicant and the Director (through their respective legal representatives) communicated by without prejudice communications as to whether these proceedings should be withdrawn.

15.  On 21 January 2016 the Director and the applicant reached an agreement as to the disposal of these proceedings save and except the issue of costs.

16.  As a result, by consent, it is ordered that the judicial review application be withdrawn and that there is no order as to costs between the applicant and the TCAB.  The hearing date of the Summons was also vacated.  As to the costs between the applicant and the Director, it is to be dealt with on papers by way of written submissions.

17.  The parties have since submitted their written submissions.

18.  The applicant submits that there should be no order as to costs in this settled judicial review, while the Director asks for costs.

19.  This is the court’s decision on costs between the applicant and the Director after considering the respective submissions filed by them.

B.   WHAT SHOULD BE THE COSTS ORDER IN THIS SETTLED JUDICIAL REVIEW

B1.    Applicable principles

20.  This court, in applying R(Boxall) v Waltham Forest London Borough Council [2000] All ER (D) 2445 at paragraph 22, per Scott Baker J, has reviewed the principles governing costs in settled applications for judicial review in MAM v The Administrator, the Duty Lawyer Service (HCAL 79/2014, 15 April 2015) at paragraphs 11 - 18.  In gist, unless the court can come to a clear view in a summary way at this stage as to who is likely going to win the original judicial review, the fall-back position is to make no order as to costs in a settled judicial review.  In considering this question, the court should adopt a broad approach and is entitled when appropriate to also look at the conduct of the parties and the underlying objectives of the Rules of the High Court.

B2.    Applying the principles to the present case

21.  Given the above principles, and the parties’ position, the crucial question that the court has to consider in the present matter is whether I can come to a clear view that the Director is more likely to win the judicial review.  In so assessing, I should adopt a broad approach without entering into an overly detailed forensic analysis.

22.  The Director’s submissions on why it is clear that the applicant’s judicial review should be dismissed is that it is clear that the ex parte leave granted to the applicant to apply for judicial review should be set aside on the basis of:

(1) material non-disclosure, as the applicant has failed to disclose in the leave application that he already lodged on 9 September 2013 (ie, before he filed the leave application) a fresh non-refoulement claim under the USM scheme relying on CIDTP ground under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) and the ground of risk of persecution under the Convention relating to the Status of Refugees; or

(2) the applicant was seriously out of time (some 18 months from the date of the TCAB’s Decision) and there is no good reason to extend time.

23.  I agree with the Director that it is a clear case that the ex parte leave should be set aside on the ground of material non‑disclosure.  My reasons are these.

24.  It is obvious that the fact that the applicant has already made a fresh non-refoulement claim under the USM scheme is a relevant matter to the consideration of the question of whether the intended judicial review seeking to challenge the earlier decision to refuse the applicant’s non‑refoulement claim based on the CAT was academic, and thus whether leave should be granted. Mr Parker for the applicant rightly has not sought to contend otherwise.

25.  As such, the applicant had a clear duty to disclose this fact to the court in the ex parte leave application, which he had failed.  In the premises, the court should exercise its discretion to set aside the ex parte leave, and it is only in rare or limited circumstances that the court would not so exercise its discretion.  The underlying rationale on this trite approach has been reiterated and summarised by A Cheung J (as the learned CJHC then was) in Kan Hung Cheung v The Director of Immigration (HCAL 74/2007, 13 February 2008) at paragraphs 17 ‑ 19 as follows:

“17. An applicant has a duty to inform the court as soon as he becomes aware that the court has been mis-informed or given incomplete information at the time of the ex parte application.  There is also a duty to disclose any material change of circumstances while the proceedings remain on an ex parte basis.  Hong Kong Civil Procedure 2008, vol 1, para 29/1/39 (page 545); Tshikangu, supra, at para 23.

18. In the event of material non-disclosure or material misstatement of facts, the court’s approach is as follows:

‘(a) the same principles are to be applied whether there has been material non-disclosure or material misstatements of facts and to all ex parte applications;

(b) even if there has been material non-disclosure or misstatement of fact, the court nevertheless has a discretion whether or not to set aside an ex parte order: this discretion will very rarely be exercised in favour of a person seeking to uphold the exparte order in cases of deliberate non‑disclosure or misstatement of material facts and with great caution even in cases where such non-disclosure or misstatement was not deliberate; and

(c) normally a court will not assist a party to retain an advantage to which he was not entitled.’

Re Mount Everest Investments Ltd, supra, at p 182A to C (per Barker JA).

19. The jurisdiction to set aside an ex parte order for material non-disclosure is a disciplinary, indeed penal, jurisdiction, quite irrespective of the merits of the application.  In Tshikangu, supra, at paras 31 and 32, Stanley Burnton J explained the jurisdiction in the following terms:

‘31. The power of the court to discharge an order giving permission to proceed, made on an application without notice to the other side, on the ground of non‑disclosure, is a disciplinary, indeed penal, jurisdiction. In Brink’s Mat v Elcombe [1988] 1 WLR 1350, Slade LJ said, at 1359:

“It serves the important purposes of encouraging persons who are making ex parte applications to the court diligently to observe their duty to make full disclosure of all material facts and to deter them from any failure to observe this duty, whether through deliberate lack of candour or innocent lack of due care.

Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked.”

32. If the power were in general only exercised in cases where the claimant has no arguable case, there would cease to be any real sanction against non-disclosure.  The sanction must be real, even in cases in which permission would have been given on full disclosure, in order to promote compliance with the duty of full disclosure.  In my experience, the discretion of the court in cases of non-disclosure has been at large, with the relevant considerations being the materiality of the information withheld, the reasons for non-disclosure, the nature of the case, the relevant conduct of the parties, and the consequences for the parties of the discharge of the order obtained without notice.’”

26.  Mr Parker effectively raises two contentions to say why the ex parte leave should not be so set aside, or at least (for the present purposes), it is not so clear that the Director would succeed to set aside the leave on this basis so as to be entitled to the costs of the settled judicial review.

27.  Mr Parker submits that leave should not be so set aside as the Director himself was aware of the non-disclosed fact.  With respect, this submission cannot assist the applicant, as the burden is squarely on the applicant to disclose it himself to the court in the ex parte application.

28.  Mr Parker also submits that the Director should act promptly in seeking to set aside the ex parte leave, but there had been a delay on the part of the Director in taking out the Summons to do so.  As mentioned above, the Summons was taken out by the Director on 30 October 2015, some seven months after the leave was granted.

29.  However, in light of the underlying rationale that the ex parte leave should be set aside for material non-disclosure as a penal jurisdiction to promote compliance with the duty of full disclosure, I am not satisfied that the fact that the Summons was taken out in October 2015 constitutes such an obvious and overwhelming reason in the circumstances of the present case (as summarised at paragraphs 5 ‑ 10 above) to justify the court to exercise its discretion in favour of the applicant, allowing him to keep the “benefit” of his failure in his duty to make full and frank disclosure.

30.  In the premises, this is a clear case that the ex parte leave should and would have been set aside for material non‑disclosure. The Director should thus be entitled to the costs of the now settled judicial review and the Summons.  However, these costs should not include the costs incurred in the preparation and filing of the evidence on 8 June 2015 by the Director relating to the substantive merits of the judicial review.  This is so since the costs would not have been incurred had the Director taken out the application to set aside for material non-disclosure before the filing of this evidence (which they could have).  In the premises, it would not be fair in these circumstances to require the applicant to bear this part of the costs even though his judicial review would have likely been dismissed with the ex parte leave having been set aside for material non-disclosure had the matter proceeded without the settlement.

31.  Given my above clear conclusion, I do not find it necessary to further consider whether the ex parte leave should also likely to have been set aside for delay.

C.     CONCLUSION

32.  For the above reasons, I would order that costs of this judicial review and the Summons be to the Director to be taxed if not agreed, but this costs does not include the costs of the preparation and filing of the Director’s evidence filed on 8 June 2015, viz, the Affidavit of Lee Shuk Mei, the Affidavit of Lee Yeuk Yang Catelly and the Affirmation of Chik Freddy Yu Fai.

33.  The applicant’s own costs be taxed in accordance with legal aid regulations.