MI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2875/2018

[2020] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2875 OF 2018

________________________

________________________

________________________

DECISION ON COSTS

________________________

INTRODUCTION

1.  The matter which now requires determination concerns the question of costs, following the disposal of the present application for judicial review pursuant to the consent procedure under paragraph 23 of Practice Direction SL 3.

2.  The Applicant is a non-refoulement claimant. The chronology relevant for the present purpose is as follows:

16.08.2016	Director’s decision rejecting the non-refoulement claim
07.09.2017	Director’s further decision rejecting the non-refoulement claim
18.07.2018	Hearing before Adjudicator (Mr William Lam) in respect of Applicant’s appeal/petition against Director’s decisions
14.09.2018	1st Respondent (“the TCAB”) dismissed Applicant’s appeal/petition (“the TCAB Decision”)
11.12.2018	Director’s decision refusing to allow Applicant to make a subsequent claim (“the Director’s Subsequent Claim Decision”)
14.12.2018	Form 86 challenging TCAB Decision
17.12.2018	Court gave directions regarding service of papers on TCAB and Director and for a rolled-up hearing
02.04.2019	Amended Form 86 seeking to challenge the Director’s Subsequent Claim Decision
09.04.2019	Papers served on Director and TCAB
23.04.2019	TCAB notified Court that it would adopt a neutral stance
17.05.2019	DoJ gave notice that Director would oppose leave and substantive applications
06.08.2019	Director filed evidence to oppose leave and substantive applications
03.09.2019	Notice of hearing:  rolled-up hearing to take place on 17.01.2020
16.12.2019	DoJ proposed to Patricia Ho & Associates (“PHA”) that TCAB Decision be quashed and remitted to TCAB for fresh determination and Director’s Subsequent Claim Decision be maintained, and that there be no order as to costs of proceedings
30.12.2019	PHA replied maintaining that there were merits in the challenge to the Director’s Subsequent Claim Decision which should be remitted to the Director for reconsideration, and that the costs of the application for judicial review be to the Applicant
02.01.2020 - 06.01.2020	Further correspondence between the parties on the terms of disposal of the application for judicial review and on the issue of costs
08.01.2020	Parties agreed to dispose of application for judicial review: (i) TCAB Decision be quashed and remitted to TCAB for fresh consideration, (ii) the application for judicial review of Director Director’s Subsequent Claim Decision be withdrawn, and (iii) costs be dealt with on paper
09.01.2020	Court approved draft Order, and gave directions regarding submissions on costs
17.01.2020	Court Order formally disposed of application for judicial review
07.02.2020	Applicant’s submissions on costs together with 10 bundles of documents
02.03.2020	Director’s submissions on costs
09.03.2020	Respondent’s reply submissions on costs
10.03.2020	Court directed oral hearing on the issue of costs
17.08.0202	Oral hearing vacated due to an incident arising from the outbreak of COVID-19 in Hong Kong.  Directions given for the question of costs to be determined on paper.

3.  The Applicant’s position on costs is as follows:

(1)  primary position - costs should follow the event, meaning that he should be entitled to costs against both the TCAB and the Director;

(2)  secondary position - he should have 50% of the costs against the Director as from 2 April 2019.

4.  The Director’s position on costs is that the Applicant should pay the Director’s costs of and occasioned by the proceedings after 23 December 2019 (being 7 days after the Department of Justice’s letter dated 16 December 2019), and save as aforesaid, there be no order as to costs.

NO PROPER BASIS TO ORDER TCAB TO PAY APPLICANT’S COSTS

5.  The relevant principles are well established, and were set out in the judgment of Brooke LJ in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, at §47, quoted with approval by the Court of Appeal in Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111, at §17, as follows:

“(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings.

(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event.

(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and [the] like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for cost against it whatever the outcome of the application.

(iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.”

6.  At §42 of Orrico Philippe, the Court of Appeal stated that the criteria for establishing flagrant improper behaviour were stringent, and not all obvious or even blatant errors on the part of a tribunal would come within this test.

7.  In the present case, the Applicant argues that the TCAB Decision was arrived at in a manner that was flagrant and improper by the Adjudicator.  Such allegation was, however, not raised in the Amended Form 86.  The grounds of judicial review raised were the usual grounds of judicial review, namely:

(1)  Ground 1A (error of law) - the TCAB unreasonably failed to adequately investigate, review and analyze relevant COI and made material errors in findings on the specific country situation in Iran;

(2)  Ground 1B (error of law) - the TCAB unreasonably failed to assess the personal risks faced by the Applicant with the use of adequate COI and made findings that are not supported by logical grounds;

(3)  Ground 2 (error of law and/or breach of high standards of fairness) - the TCAB had no good or sufficient reason to reject the credibility of the Applicant;

(4)  Ground 3 (error of law) - the TCAB failed to apply the correct test on the minimum level of severity; and

(5)  Ground 4 (error of law) - the TCAB failed to investigate the Applicant’s conversion in respect of his religious faith.

8.  I have read and considered the TCAB Decision. Whilst it must now be accepted that the Adjudicator had made reviewable error(s) of law, the Applicant’s complaints that the Adjudicator arrived at the decision in a manner that was flagrant and improper is, in my view, far off the mark.  There was nothing exceptional about the way in which the Adjudicator arrived at the TCAB Decision.  As pointed out by the Court of Appeal in Orrico Philippe, at §43, “even the most conscientious and competent decision-maker would have made mistakes which with the benefit of hindsight, can be described as obvious or blatant” (see also KMM v Torture Claims Appeal Board [2016] 1 HKLRD 568 (CA), at §§22-23).  I have no hesitation in rejecting the Applicant’s serious allegation of flagrant improper behaviour on the part of the Adjudicator in the present case.

9.  The consideration mentioned in §47(iv) of Brooke LJ’s judgment in Davies has no relevance in this case, because the Applicant has been on legal aid since 28 November 2018.  In any event, it is well-established in this jurisdiction the fact that the Applicant is legally aided is not a relevant factor when deciding whether to make an order for costs in his favour (see KMM v Torture Claims Appeal Board [2016] 1 HKLRD 568).

10.  In support of his argument that the TCAB should bear the costs of the Applicant, Mr Deng also relies the following matters: (i) the Adjudicator’s loss of his laptop computer (on 3 September 2018) and his failure to file any evidence to explain whether the laptop computer contained information which might jeopardize the Applicant’s safety and whether the Adjudicator drafted any of his reasons without references to the notes that he made at the oral hearing[1], and (ii) the Adjudicator was “biased against the Applicant from the outset”[2].

11.  I shall deal with the complaint regarding the loss of the laptop computer later in this decision.  In relation to the complaint that the Adjudicator was biased against the Applicant, this allegation was not raised in the Amended Form 86.  None of the matters raised by Mr Deng[3] supports, in my view, the serious allegation of bias against the Adjudicator.

12.  In all, I reject that Applicant’s contention that the TCAB should pay any part of his costs.

DIRECTOR SHOULD PAY A PORTION OF APPLICANT’S COSTS

13.  Up to 16 December 2019, the Director’s stated position was that he would oppose both the application for leave to apply for judicial review and the substantive application for judicial review.  He also filed evidence in opposition to the applications.  The Director subsequently accepted that the application for judicial review of the TCAB Decision should be allowed.  Having considered the papers and adopting a broad approach[4], I consider that the Applicant is more likely to win on the merits in his application for judicial review of the TCAB Decision.  It follows that, prima facie, the Director ought to pay the Applicant’s costs in relation to his challenge to the TCAB Decision, at least up to 16 December 2019 when the Director proposed to the Applicant’s solicitors that the TCAB Decision be quashed and remitted to TCAB for fresh consideration.

14.  The Director’s present position is, inter alia, that he is not liable to pay any part of the Applicant’s costs up to 23 December 2019 (being 7 days after the Department of Justice’s letter dated 16 December 2019).  In my view, this position is untenable.

15.  As earlier noted, the Applicant amended the Form 86 on 2 April 2019 to challenge the Director’s Subsequent Claim Decision. Two matters are relied upon in support of this challenge[5]:

(1)  the availability of the Applicant’s brother’s interview records in Germany which, it is said, is evidence that his brother’s successful refugee claim in Germany was “based on the Applicant’s own conversion to Christianity”; and

(2)  the loss of a laptop computer by the Adjudicator.

16.  In respect of the first matter, I have considered the reasons contained in the Immigration Department’s letter dated 11 December 2018 to Daly Ho & Associates for the Director’s Subsequent Claim Decision.  It is by no means clear that there had been a significant change of circumstances since the Applicant’s claim was determined by the TCAB on 14 September 2018 such as would justify a subsequent claim being made under s 37ZO of the Immigration Ordinance, Cap 115.  The interview record of the Applicant’s brother could not, by itself, showed that his refugee claim in Germany was successful[6]. It is also not possible to tell, from the record of interview, how far the German tribunal accepted the matters stated by the Applicant’s brother.  In any event, the determination by the German tribunal on the Applicant’s brother’s refugee claim, or any findings of fact made in relation to that claim, is not binding on the Director, who has to make his determination based on his own assessment of the evidence and materials before him.  Likewise, for the TCAB. Moreover, as accepted by Mr Deng, the intended challenge to the Director’s Subsequent Claim Decision was rendered academic by the parties’ agreement that the TCAB Decision should be quashed.  There was no good reason that I can see in the present case for the court to continue to consider the challenge to the Director’s Subsequent Claim Decision.  The Applicant’s initial position that the Director’s Subsequent Claim Decision should also be remitted to the Director for fresh consideration does not seem to me to be supportable.

17.  In respect of the second matter, the basic facts relating to the incident concerning the loss of the laptop computer by the Adjudicator on 3 September 2018 were set out in another judgment of this court in G & Others v Mr Lam Kui-Po, William and Others [2020] 2 HKLRD 118 ([2020] HKCFI 377).  The Applicant argues that the Director ought, but failed to, investigate whether the loss of the laptop computer would give rise to persecution risk to the Applicant.  However, the Applicant has never had any evidence, or proper basis, to allege that the laptop computer contained any personal information relating to him.  On the other hand, in the TCAB’s letter to Daly, Ho & Associates (the Applicant’s former solicitors) dated 23 October 2018 in response to a general inquiry raised by them on 21 September 2018 as to what follow-up action would be taken by the TCAB “following the leakage of personal data in this matter”, the TCAB informed the Applicant’s former solicitors that it had already issued letters to persons affected by the incident.  As pointed out in the TCAB’s letter to the court dated 13 May 2020, no such letter was sent to the Applicant, and the laptop incident did not affect the Applicant.  The Applicant or his solicitors never wrote to the TCAB to specifically ask whether the laptop computer contained any personal data of the Applicant.  An application for judicial review is a serious matter, and should not be embarked on a speculative basis, which is what the Applicant did in this case in respect of the complaint arising from the incident concerning the loss of the Adjudicator’s laptop computer.  The burden is on the Applicant to show by evidence that the loss of the laptop computer would, or at least might, prejudicially affect his interest.  It is wrong in principle for the Applicant to make a bare assertion without evidence, and then complain that the Adjudicator and the Director have failed to produce evidence to show that the laptop computer did not contain his personal information or that the loss of the laptop computer would not adversely affect his interest.  The duty of candour does not arise unless there is, at least, some proper basis for making a relevant complaint in the first place.  In all, I do not consider that the incident concerning the loss of the laptop computer can support the Applicant’s challenge to the Director’s Subsequent Claim Decision.

18.  On a broad-brush basis, I consider that the Applicant ought to have 80% of his costs of these proceedings up to 17 January 2020 (being the date of formal disposition of the substantive application for judicial review).  The costs incurred by the parties thereafter would be in relation to the issue of costs.  The Applicant has only been partially successful.  In particular, he has failed in his primary position that, inter alia, the TCAB should bear his costs.  I would therefore make an order that the Applicant shall have 50% of the costs after 17 January 2020.

DISPOSITION

19.  The Director shall pay to the Applicant (i) 80% of his costs of these proceedings up to 17 January 2020, and (ii) 50% of his costs thereafter (save that no costs arising from the preparation of 10 bundles of documents filed by the Applicant for the purpose of the submissions on costs should be allowed), to be taxed if not agreed.

20.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations, save that no costs arising from the preparation of 10 bundles of documents filed by the Applicant for the purpose of the submissions on costs should be allowed. The preparation of 10 bundles of documents is an extravagant exercise, and cannot be justified.  Having looked at the papers, and nsidered the arguments filed by the parties on the question of costs, I consider that no more than 1 bundle of core documents (including the Amended Form 86, the Director’s decisions dated 18 August 2016 and 7 September 2016, the TCAB Decision and some letters relating to the Director’s Subsequent Claim Decision) would be required for the purpose of the submissions on costs.  In respect of other documents highlighted in the Applicant’s solicitors’ letter dated 10 August 2020, all that would have been necessary was to produce relevant extracts or pages of the exhibits, or identify the relevant pages of the exhibits which the court can locate from the documents already filed.