GA v. DIRECTOR OF IMMIGRATION

FACV 7, 8, 9 & 10/2013

FACV 7 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2013 (CIVIL)

(ON APPEAL FROM CACV NO. 45 OF 2011)

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FACV 10 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2013 (CIVIL)

(ON APPEAL FROM CACV NO. 48 OF 2011)

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BETWEEN

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JUDGMENT ON COSTS

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Chief Justice Ma (giving the judgment of the Court):

1.  By a judgment handed down on 18 February 2014, the Court dismissed the appeals of the Applicants GA, FI, JA and PA.  Although for the reasons stated in the judgment[1] the appeals were in a sense academic, the Court and all the parties were content to deal with the appeals by reason of the importance of the issues that were raised in them.

2.  Apart from the dismissal of the appeals, the Court made an order nisi that there should be no order as to costs.  It was stated[2] that the Applicants could be said to have been partially successful in their submissions regarding the IDT[3] part of the appeals.  The Respondent seeks to vary the costs order nisi.  Written submissions have been lodged with the Court.  This judgment should be read together with the main judgment.

3.  The Respondent’s position is simply put: costs ought to follow the event (the appeals having been dismissed) and, regarding the IDT point, this was not a point against which the Respondent had argued in the appeals.[4]

4.  In our view, there should be no order made as to costs in the appeals:-

(1) True it is that the Respondent did not seek to argue against the proposition that his discretion was subject to IDT considerations, but this point still had to be argued (and accepted) by this Court.  In other words, on this point alone, the Applicants were justified in appealing to this Court.

(2) Given that this was the applicable law, in the normal course of events, the Court (or some other tribunal) would then have had to make a determination regarding IDT on the facts of the case.  Indeed, the Applicants and the Respondent made submissions at the hearing, asking the Court to make factual determinations in their favour.  If the Court had been compelled to take this course, it would then have referred the fact finding exercise to another tribunal.[5]  In view of the academic nature of the exercise, it did not do so.  Had this further inquiry been ordered, however, only after the determination in that inquiry would the “event” as far as the Applicants were concerned and as far as costs were concerned, have occurred.

(3) Accordingly, while it is correct that the Applicants did not succeed in a number of the arguments advanced in the appeal, the IDT argument was an important one that had to be dealt with by this Court, alongside the other points that were dealt with in the public interest.  And, but for those factors which made the appeals academic, there would have been further fact finding proceedings at the conclusion of which, the Applicants may have been successful.  In these circumstances, it is not appropriate simply to adopt the “costs should follow the event” approach.

5.  For the above reasons, the order nisi is made absolute.