R v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 152/2017

[2020] HKCFI 1308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 152 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of “Decision (1)” identified in the Amended Form 86, namely, an alleged “policy or practice by which ‘pre-screening’ is applied to non-refoulement claims and accepted into the Unified Screening Mechanism (‘USM’)” (“the Alleged Pre-Screening Policy”).

BACKGROUND FACTS

2.  The Applicant is a Nepali national who entered Hong Kong illegally by boat from the Mainland on 14 August 2016.  He was referred to the Immigration Department on 18 August 2016 and thereafter detained until he was released on recognizance on 19 January 2017.

3.  Whilst in detention, the Applicant made a total of 11 written significations of a non-refoulement claim between 19 August 2016 and 17 January 2017.  In relation to the 1^st to 10^th significations, the Immigration Department did not consider that the Applicant had given a general indication of the reasons for claiming non-refoulement protection in Hong Kong, and thus the Applicant was considered not to have made a non-refoulement claim.  Accordingly, the USM was not invoked to assess the Applicant’s claim.

4.  In relation to the 11^th signification made by Daly, Ho & Associates on behalf of the Applicant, the Immigration Department considered that the Applicant had given a general indication of the reasons for claiming non-refoulement protection in Hong Kong, and thus the USM was invoked to assess his claim.

5.  On 20 April 2017, the Applicant made an application for leave to apply for judicial review by filing a Form 86.  On 19 October 2017, Au J (as he then was) granted the Applicant leave to amend the Form 86.

6.  By the Amended Form 86, the Applicant seeks to challenge the following “decisions”:

(1)  the Alleged Pre-Screening Policy;

(2)  the failure and/or refusal to recognize the Applicant as a person espousing a non-refoulement claim, and to direct his claim to the USM, between 19 August 2016 and 17 January 2017;

(3)  the decision to remove the Applicant from Hong Kong to Nepal, and the attempts to so remove him (involving the use of force) on 18 October 2016, 20 October 2016 and 1 November 2016;

(4)  the decision or decisions to detain the Applicant between 19 August 2017 and 19 January 2017, and the detention of the Applicant between 19 August 2017 and 19 January 2017 (or any part thereof); and

(5)  the (alleged) physical mistreatment of the Applicant during the 3 removals mentioned in (3) above.

7.  By a letter dated 17 January 2018 from the Department of Justice to Daly, Ho & Associates, the Director informed the Applicant that he was prepared to accept that:

(1)  the failure to recognize the Applicant as espousing a non-refoulement claim and to direct his claim to the USM between 19 August 2016 and 17 January 2017;

(2)  the decisions and attempts to remove the Applicant from Hong Kong to Nepal on 18 October 2016, 20 October 2016 and 1 November 2016; and

(3)  the Applicant’s detention between 19 August 2016 and 19 January 2017,

were not lawful in all the circumstances. The Director also offered to pay compensation for the Applicant’s detention for the period from 19 August 2016 to 19 January 2017.  The Director did not, however, accept the Applicant’s allegation of physical mistreatment during the 3 attempted removals.

8.  On 28 November 2019, the court granted the Applicant leave to apply for judicial review in respect of Decisions (2), (3) and (4) referred to in paragraph §6 above, with an extension of time for the Applicant to apply for leave to apply for judicial review in respect of those decisions.

9.  On 9 December 2019, the court made the following orders by consent:

(1)  declaring that (i) the Director’s failure to recognize the Applicant as espousing a non-refoulement claim and to direct his claim to the USM for assessment between 19 August 2016 and 17 January 2017, (ii) the detention of the Applicant between 19 August 2016 and 19 January 2017; and (iii) the attempts to remove the Applicant from Hong Kong to Nepal on 18 October 2016, 20 October 2016 and 1 November 2016, were unlawful;

(2)  directing that the Applicant’s claim for damages for (i) his unlawful detention between 19 August 2016 and 19 January 2017, and (ii) the attempted removal of the Applicant from Hong Kong to Nepal on 18 October 2016, 20 October 2016 and 1 November 2016, including the alleged mistreatment of the Applicant (if any) during the course of the removal exercises, shall continue as if it had been made in an action begun by writ pursuant to Order 53, rule 9(5) of the Rules of the High Court (Cap 4A), and be transferred to the District Court for determination pursuant to ss 43 and 44 of the District Court Ordinance (Cap 336).

10.  Accordingly, the only remaining issue to be dealt with in the present application for judicial review concerns the Applicant’s challenge to the Alleged Pre-Screening Policy, which is advanced by Mr Parker on behalf of the Applicant as a systemic challenge.

THE REQUIREMENT OF A SIGNIFICATION TO INVOKE THE SCREENING PROCESS

11.  A person wishing to make a non-refoulement claim must first make a signification to that effect.

12.  In so far as a “torture” claim (ie a claim for non-refoulement protection in Hong Kong on the ground of a torture risk under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 as applied to Hong Kong) is concerned, the position is governed by Section 37X of the Immigration Ordinance, Cap 115 (“the Ordinance”), which provides, so far as relevant, as follows:

“(1) A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must signify to an immigration officer in writing the person’s intention to seek non-refoulement protection.

(2) The written signification must give a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong, being reasons that relate to an act falling within the meaning of torture as defined by section 37U(1).

(3) On signifying an intention under subsection (1), the person must allow an immigration officer or an immigration assistant to take the person’s fingerprints and photograph.

(4) A torture claim is made when subsections (1), (2) and (3) have been complied with by the person making the claim.”

13.  The statutory screening mechanism for dealing with torture claims under Part VIIC of the Ordinance has been adapted by the Government to become what is known as the Unified Screening Mechanism for the purpose of screening non-refoulement claims based on all applicable grounds, including (i) torture claims under the Ordinance, (ii) violation of absolute and non-derogable rights under the Hong Kong Bill of Rights, (iii) persecution with reference to the non-refoulement principle under Article 33 of the 1951 Refugee Convention.  The purpose of the USM is to ensure that non-refoulement claims by a person on all applicable grounds are processed in parallel under both statutory and administrative systems with the same procedures having regard to the high standard of fairness required to be observed in relation to the screening process.

14.  As with the making of a torture claim under the Ordinance, a person seeking non-refoulement protection under other grounds must make a written signification before the USM is invoked.  The need for a relevant signification is set out in a document entitled “Notice to Persons Making a Non-refoulement Claim” (September 2017 version) (“the Notice”):

“Making of a claim

[20] A person who claims non-refoulement protection in Hong Kong must signify to an immigration officer in writing his intention to seek non-refoulement protection. The written signification must give a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong, which may include reasons that relate to an act falling within the meaning of any applicable grounds. A person will be requested to allow an immigration officer or immigration assistant to take his fingerprints and photographs. Once a non-refoulement claim is made, the claim will be screened on all applicable grounds.

[21] While there are no specific express words required in order to make a claim in writing, the requirement that the written signification must give a general indication of the reasons for making such claim, which may include reasons that relate to an act falling within the meaning of any applicable grounds must be complied with.

[22] After a person has signified in writing his intention to seek non-refoulement protection in accordance with paragraph 20 above, officers of the Removal Assessment Section (‘RAS’) of the ImmD should make arrangement to take fingerprints and photograph of the person as soon as practicable. Once the requirements referred to at paragraph 20 above have been complied with, the RAS should acknowledge [to] the claimant in writing that the non-refoulement claim is made and will be processed in due course.

[23] A non-refoulement claim will not be considered made unless the ImmD is satisfied that the written signification has given a general indication of the reasons for making such a claim being reasons set out at paragraph 20 above. If the claimant’s written signification fails to give such indication, his claim will be considered not made. A person who has submitted a written signification will receive a written reply from the ImmD as to whether his claim has been considered made.

15.  In can be seen that under both the statutory screening mechanism under Part VIIC of the Ordinance and the administrative USM, a person must first make a written signification giving “a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong” before he is regarded as having made a non-refoulement claim, which will then set in train the screening process.  Mr Parker has drawn the court’s attention to the fact that in the Notice, it is provided that the signification “may include reasons that relate to an act falling within the meaning of any applicable grounds”, but no such provision appears in Section 37X of the Ordinance.  I do not see that the additional provision in the USM to be material for the purpose of the present case.

16.  In the Affirmation of Cheung Ho-chi, Assistant Secretary of the Security Bureau, filed on 9 February 2018, Mr Cheung explains how, in practice, immigration officers determine whether a sufficient signification has been made by a person:

“[49] There are no prescribed rules or procedures as to how a person may in writing signify his / her intention to lodge a non-refoulement claim. The written signification need not be made in any specified form, and can be made at any time to any immigration officer. In practice, such a claim is often in response to a notice stating that the Director was considering a removal order or was considering recommending that the person be deported. If a claimant is illiterate or makes a request for an oral claim, an officer of ImmD, assisted by an interpreter were necessary, will interview and take a statement signed or attested by the claimant.

[51] There are no specific or ‘magic’ words required to be used in order to make a claim. On the other hand, using certain magic words (e.g. USM or CIDPT) would not, by itself, lead to a claim being made. This is because persons subject or liable to be removed may very well be unfamiliar with our immigration regime. He may be unable to utter the magic word, or he may only learn the magic word (or even only the acronym) from his friends without even knowing what it means but was told that these magic words would allow him to remain in Hong Kong. Instead, the written signification shall provide a general indication that the reasons for the claimant to seek non-refoulement protection is one that relate to an act falling within the meaning of any of the applicable grounds. Such a requirement is practically indispensable, for otherwise ImmD has no way of telling whether the screening procedures under USM as opposed to any other procedure shall be engaged. For example, a person may write to ImmD to object to being removed on the ground that he enjoys permanent residence, in which case other procedures than USM (say, the verification of eligibility for permanent identity card) would be engaged.

[52] To accept or treat every written signification regardless of whether the reasons given relate to an act falling within the meaning of any of the applicable grounds may lead to abuse of the USM and possible risk of mass influx of illegal immigrants and/or deliberate overstayers which will greatly jeopardize our immigration control, public safety and social stability.

[53] In short, while section 37X of the Ordinance and paragraph 20 of the Notice set out the procedures and requirements on how a non-refoulement claim shall be made, in practice whether a claim is ‘considered’ made by ImmD is subject to the actual circumstances of individual cases and assessment of the handling officer on a case-by-case basis.  It has to be emphasized that there is no so-called ‘Pre-screening Policy’ under the USM.”

THE MERITS OF THE INTENDED CHALLENGE

17.  The Applicant contends that the Alleged Pre-Screening Policy is ultra vires because it breaches obligations arising from:

(1)  HKBOR Article 2 (right to life) and Article 3 (no torture or inhuman treatment);

(2)  Basic Law Article 28 (freedom of the person, no arbitrary or unlawful detention, etc) and Article 39 (application of, inter alia, the ICCPR in Hong Kong);

(3)  Section 37Z(1) of the Ordinance (effect of making a torture claim); and

(4)  the Director’s own policy of respecting the principle set out in Article 33 of the 1951 Refugee Convention (non-refoulement of refugees)[1].

18.  The Secretary and Director dispute the existence of the Alleged Pre-Screening Policy, in the sense of a policy to “pre-screen” the merits or validity of a non-refoulement claim prior to it being assessed under the USM.  There is nothing in the evidence before the court to suggest that any such policy has ever existed.  To the extent that the Applicant alleges that the Secretary and/or Director have a policy under which they “refuse to recognize validly-made protection claims”[2], this allegation is plainly without any foundation.

19.  Leaving aside for the moment the “pre-screening” label, the only policy which, on the evidence, exists is a policy relating to the determination of the initial question of whether a person has made a non-refoulement claim in order to invoke the USM.  This policy is embodied in Section 37X of the Ordinance and the Notice referred to in §§12 and 14 above.  There cannot, in my view, be any objection in principle to the existence of such policy. As pointed out in the Affirmation of Cheung Ho-chi, at §7, removees (or deportees) may object to being removed (or deported) from Hong Kong for a variety of reasons, many of which have nothing to do with non-refoulement protection.  For example, they may claim that they enjoy the right of abode in Hong Kong, or wish to remain in Hong Kong to work, or wish to stay in Hong Kong with their family members, or wish to remain in Hong Kong for medical treatment, or that the economic situation of their home countries is bad and hence they will be living in poverty if they have to return to their home countries.  Plainly, there must exist a process to determine the initial question of whether a claim for non-refoulement protection has been made before the USM is invoked to assess the claim.

20.  The current policy requires a person wishing to make a non-refoulement claim to give a written signification giving a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong.  I am unable to see how this requirement can in any way be said to be inconsistent with any of the protected rights referred to in §17 above.  A similar requirement appears in the current UK Home Office Guideline entitled “Asylum screening and routing” (Version 5.0) published on 2 April 2020:

“You only need to check that a claim can be particularized, not whether the claim is a well-founded asylum or humanitarian protection claim …

If the claimant cannot particularise their claim - that is give a basic reason why they fear persecution or serious harm on return - or the grounds given are very clearly not related to any protection matter, then you should consider not accepting that a claim for asylum has been made. However, if you are in doubt about the claimant’s ability to communicate (which will likely be apparent across the whole interview) due to a health condition or disability, then the asylum claim must be accepted …

It is important to note that the claimant may not use the term ‘asylum’.  Instead, the claimant may use a variety of terms to express the reason why they fear returning to their country of origin or habitual residence.  It is also important to note that the term ‘asylum’ of itself does not constitute a claim if it cannot be particularized.” [underlining added]

It is clear that in the UK, the emphasis is on the particularization of a claim before it is accepted that a claim for asylum protection has been made.

21.  It transpires from Mr Parker’s submission that the Applicant’s complaint is not so much about the requirement on a claimant to give a general indication of his reasons for claiming non-refoulement protection in Hong Kong before he is treated as having made a relevant claim, but that the Director has adopted too “high a threshold” for recognizing non-refoulement claims.  There are some references to the question of “threshold” in the Amended Form 86, eg at §§76 and 145.1.  However, those references are made not as part of the grounds of review, but in support of the Applicant’s application for an extension of time to apply for leave to apply for judicial review, and his argument why the court should entertain the application even if it considers that the intended challenge has become academic (a matter which I shall consider later in this decision).  In any event, assuming, for the sake of argument, that the Applicant has properly or sufficiently raised the complaint that the Director has adopted too high a threshold for recognizing non-refoulement claims in the Amended Form 86, the Applicant has failed to plead any sufficient basis to support the contention that, on a systemic level, the Director has adopted an incorrect threshold.  All that has been pleaded in the Amended Form 86 is that the Applicant’s 10 significations made between 19 August 2016 and 5 January 2017 were not accepted by the Director as valid significations of a non-refoulement claim.  It must now be accepted that the Director’s decisions not to accept them as valid significations were wrong.  It may even be said that those decisions were plainly wrong.  However, the fact that the Director has made wrong decisions cannot, in my view, prove that there is a systemic deficiency in the application of the Alleged Pre-Screening Policy.  The Applicant has sought to rely upon, in addition to the rejection of his significations, 6 anonymized “case studies” through the Affidavit of Karen McClellan dated 3 January 2020 and the Affirmation of Issac Laban Shaffer dated 10 January 2020.  I do not consider that the Applicant is entitled to rely on those matters because they were not raised in the Amended Form 86[3]. It would also be unfair to permit the Applicant to rely on those cases because the Secretary/Director are simply in no position to properly respond to them by reason of their anonymity.  In any event, I do not consider that incorrect decisions in isolated or individual cases can prove a systemic deficiency, bearing in mind the huge number of non-refoulement claims raised and considered by the Director since the implementation of the USM in March 2014.  According to the records kept by the Director, between March 2014 to the end of 2019, the Director received some 17,797 non-refoulement claims.

22.  Mr Parker has referred the court to various passages in the Affirmation of Cheung Ho-chi which suggest that the Director has generally adopted a strict approach in relation to immigration matters.  I am unable to see how this point advances the Applicant’s case.  The Director’s stringent immigration policy, which has been formulated having regard to Hong Kong’s unique geographical, social and economic circumstances, is well recognized, and has long been accepted by the courts in this jurisdiction as lawful.

23.  For the sake of completeness, I shall briefly state my views on the correct threshold that ought to be applied by the Director.  Generally speaking, the Director ought to adopt an “appropriately liberal view” when deciding whether a valid signification of a non-refoulement claim has been made, and should “proactively look for language” which may reasonably be interpreted as making a non-refoulement claim (see FB v Director of Immigration [2009] HKLRD 346, at §81 per Saunders J). This having been said, the express requirement that a claimant must give a general indication of his reasons for claiming non-refoulement protection in Hong Kong cannot be overlooked or ignored.  The burden on the claimant in this regard is not an onerous one.  If he has a genuine claim, he should, in most cases, have no difficulty in giving a general indication of his reasons for claiming non-refoulement protection in Hong Kong.  The duty of making a valid signification of a non-refoulement claim rests, ultimately, on the claimant himself.

24.  In all, I do not consider that the Applicant’s intended systemic challenge to the Alleged Pre-Screening Policy is reasonably arguable, or has a realistic prospect of success.

THE APPLICANT’S STANDING

25.  In this and the next section, it is assumed that the Applicant’s challenge to the Alleged Pre-Screening Policy is a systemic challenge concerning the threshold adopted by the Director for recognizing non-refoulement claims.

26.  The question of whether an applicant has sufficient interest in the matter to which an application for leave to apply for judicial review relates under Order 53, r 3(7) of the Rules of the High Court goes to the jurisdiction of the court to entertain the application (see Re Wong Chi Kin, CACV 80/2014 (26 September 2014), at §11).  The question of what amounts to a “sufficient interest” for the purpose of seeking leave to apply for judicial review was considered by this court in Kwok Cheuk Kin v Commissioner of Police, HCAL 55/2017 (19 October 2017), at §§31-34.  I do not propose to repeat the discussion here.

27.  I do not consider the Applicant to have sufficient interest to challenge the Alleged Pre-Screening Policy for the following reasons:

(1)  The Director did, as a matter of fact, recognize the Applicant as having validly espoused a non-refoulement claim, albeit belatedly on 17 January 2018.  As a matter of fact, the Applicant’s claim was rejected by the Director on 16 June 2017.  His appeal/petition against the Director’s decision was rejected by the Torture Claims Appeal Board on 27 March 2018.  His application for leave to apply for judicial review of the Board’s decision was rejected by Deputy High Court Judge Bruno Chan on 25 September 2019 in HCAL 1033/2018.  Finally, his appeal against the decision of Deputy High Court Judge Bruno Chan was dismissed by the Court of Appeal on 4 June 2020 in CACV 470/2019.

(2)  Now that the Director has accepted that the Applicant ought to have been recognized as having made a non-refoulement claim since 19 August 2016, and also liability to pay damages for the attempted removal of the Applicant on 18 October 2016, 20 October 2016 and 1 November 2016 as well as for his detention between 19 August 2017 and 19 January 2017, the question of whether the Director has adopted an unlawful pre-screening policy is no longer relevant to the Applicant.  Even if it should be found by the court that the Director has adopted an unlawful pre-screening policy, such finding will have no impact on the Applicant’s personal right or interest.  It has not been suggested by Mr Parker that such finding would have any effect on the Applicant’s claim for damages.

(3)  The Applicant cannot properly be regarded as representing other non-refoulement claimants or potential non-refoulement claimants to challenge the Alleged Pre-Screening Policy (see MS v Director of Social Welfare, HCAL 57/2015 (15 February 2016), at §47(2); Re Wong Chi Kin, ante, at §17).

(4)  There are plainly other potential non-refoulement claimants whose significations have been rejected by the Director as being insufficient to raise a non-refoulement claim who can challenge the Alleged Pre-Screening Policy, and are in a better position that the Applicant to do so, because their interests are directly affected.

THE CHALLENGE IN RESPECT OF DECISION (1) HAS BECOME ACADEMIC

28.  At the time when the Applicant filed his Form 86, he challenged not only the Alleged Pre-Screening Policy (Decision (1)), but also the Director’s failure or refusal to recognize him as having espoused a non-refoulement claim since 19 August 2016 (Decision (2)), as well as the decisions to attempt to remove him from Hong Kong to Nepal (Decision (3)) and detain him (Decision (4)).  There were also claims for damages flowing the Director’s non-recognition of a non-refoulement claim having been made by the Applicant.  The question of whether the Director had adopted an unlawful pre-screening policy was, arguably, a relevant issue at that stage.

29.  However, for the reasons mentioned in §27(2) above, the Applicant’s intended challenge to the Alleged Pre-Screening Policy has now become academic.

30.  The court’s approach to the question of whether it should hear and determine an application for judicial review which is or has become academic is well settled, and can be found in the judgment of the Court of Appeal in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at §20 per Ma CJHC (as he then was), with whom the other members of the Court of Appeal agreed:

“(1) Where a question is purely hypothetical or academic in the sense that there are simply no events that have occurred that form the basis for the question to be answered, a court will not entertain it. However relevant or even important the question may be, the court will not give an advisory opinion on hypothetical facts. There are principally two reasons for this: first, the court’s function is to adjudicate on real disputes, not imaginary ones and secondly, to decide on points of law or principle when there are no facts before the court is not only undesirable, it can have unfortunate or even dangerous consequences. In this situation, the court will not have any jurisdiction to determine the question.

(2) Sometimes, however, and the present case is one, the question before the court is said to be hypothetical or academic only because the real dispute that drove the parties to litigation (sometimes called the lis) happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place. For example, in a civil dispute, where the defendant has openly made an offer to a claimant giving him all he is entitled to and this has been accepted, the dispute no longer exists even though it once did. The learned judge thought the question for determination to be academic in the present case since the permission granted to Kwoon Chung to operate the free bus services had expired on 12 September 2002.

(3) In the type of situation referred to in the previous paragraph, the court does have jurisdiction to hear and determine the question in issue. However, in deciding whether or not to do so (and this can be said to be a matter of discretion), the court will closely examine the relevance or utility of any decision. In the public law sphere, this may be easier to demonstrate than in relation to private rights. This is because very often in public or administrative law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future. In R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, the House of Lords reviewed the relevant authorities and stated that the court had a discretion whether or not to determine the question before it even though there was no longer a lis:- see 456 G-H. However, the discretion was to be exercised with caution and the court should only do so where there was good reason in the public interest. At 457 A-B, Lord Slynn of Hadley said this:

‘The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.’

…

(4) In other public law contexts, the court may consider determining issues where, for example, there are conflicting decisions:- see R v Birmingham City Juvenile Court, ex parte Birmingham City Council [1988] 1 WLR 337.”

31.  The present case falls within sub-paragraph (2) of the above quoted judgment in Chit Fai.  In such a situation, the court has jurisdiction to determine an issue which has become academic, but such jurisdiction should be exercised with caution.  The important consideration is whether it is in the public interest for the issue to be determined.  A relevant, but by no means conclusive, consideration is whether the issue is likely or may well arise in future.  Having regard to the view that I have taken concerning the lack of evidence that the Director has adopted, on a systemic level, an incorrect threshold for recognizing non-refoulement claims, this is clearly not an appropriate case for the court to entertain the intended challenge to the Alleged Pre-Screening Policy.  A serious consideration of the issue should take place only where there is some sufficient or proper evidence to the effect that the Director has adopted, on a systemic level, an incorrect threshold as alleged.

32.  The Applicant’s lack of sufficient interest in the matter is also a factor that argues against the court exercising its discretion to entertain an academic challenge (see Shek Lai San v Securities and Futures Commission, HCAL 115/2009 (30 April 2010), at §57).

33.  In all, I am not prepared to exercise my discretion to entertain the application for judicial review of the Alleged Pre-Screening Policy, which has become an academic issue in so far as the Applicant is concerned.

DISPOSITION

34.  For all of the above reasons, the application for leave to apply for judicial review in respect of “Decision (1)” identified in the Amended Form 86 is dismissed.

35.  On the question of costs, Mr Parker fairly accepts that, if the court should refuse to grant leave to apply for judicial review, the Applicant has to pay the costs of the Respondents.  I make an order that the Applicant shall pay the costs of the Respondents after 28 November 2019, including the costs of the hearing on 16 June 2020, with certificate for 2 counsel, to be taxed if not agreed.

36.  The Applicant’s own costs shall be taxed in accordance with legal aid regulations.