YA v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PEITION OFFICE

HCAL 1026/2017

[2019] HKCFI 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1026 OF 2017

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DECISION ON COSTS

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1.  On 29 November 2018 I allowed the applicant’s application for judicial review of two decisions of the Torture Claims Appeal Board (“the Board”) for the reasons set out in my judgment, and granted an order of certiorari to quash its decisions:

   (a)   dated 17 May 2017 rejecting an unsigned Notice of Appeal/‌Petition filed on behalf of the applicant and to treat it as a nullity; and

   (b)   dated 8 September 2017 refusing the applicant’s application for late filing of his Notice of Appeal/Petition.  

2.  At the applicant’s application, I also made an order nisi that costs be to him against the Board and the Director of Immigration (“the Director”) in equal share. 

3.  Both the Board and the Director now seek to vary the costs order that there be no order as to costs.  The applicant was on legal aid while the attendance of both the Board and the Director had been excused for the main hearing as neither contested the leave application for judicial review, with the Board following the usual practice of an inferior tribunal adopting a neutral stance in a challenge to its decision, as also did the Director as the Interested Party indicating that he would abide any decision and/or order of the Court.   

4.  In support of their application for variation of the costs order nisi, both have filed skeleton submissions with the relevant authorities.  In effect they relied on what has come to be known as the rule in R (Davis) v Birmingham Deputy Coroner [2004] 1 WLR 2739, where the English Court of Appeal conducted a comprehensive review of the earlier cases andexamined the relevant practices in light of the modern developments including the general rules as to costs, the impact of human rights jurisprudence, and the modern practices in judicial review applications, where the relevant principles and practices were set out by Brooke LJ at [47]:

“ (1) 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; (2) 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; (3) 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 such 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 costs against it whatever the outcome of the application; (4) thereare, 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 (3) 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 [where] there is no other very obvious candidate available to pay his costs.”

5.  In Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111, which involved a successful judicial review to challenge the decision of the Municipal Services Appeal Board (“MSAB”) upholding the decision by the Liquor Licensing Board (“LLB”) as to whether MSAB should be held liable for costs, the Court of Appeal agreed that those principles laid down in Davis should also guide our courts in deciding whether to award costs against an inferior tribunal, when Lam VP in giving judgment for the Court held at §19:

“ We respectfully agree with Brooke LJ and notwithstanding the submission of Mr Halkes and the judgment below, these principles should also guide our courts in deciding whether to award costs against an inferior tribunal.We wish to emphasise at this juncture that by this judgment we are dealing with the position of an appeal board operating in an adversarial setting (and we believe the same principle should apply in respect of a tribunal exercising a quasi-judicial function). In view of the licensing impact on the right to operate a restaurant at the location in question, it is at least arguable (though we have not heard submissions on the point) that the right to a fair and public hearing by a competent, independent and impartial tribunal established by law under s.8 art.10 of the Hong Kong Bill of Rights Ordinance (Cap.383) is engaged. Even if for some reasonsuch fundamental right is not engaged, the common law rules on natural justice would embrace the notion that those who appeal to the MSAB are entitled to expect their appeals to be heard by an impartial board and the rule against apparent bias is applicable.”

6.  His Lordship then went on to state that these principles should apply equally to a quasi-judicial appeal board or tribunal operating in an adversarial setting:

“ 23. Generally, it is advisable for such appeal board or tribunal to adopt the usual practice as stated in Dato Tan Leong Min v Insider Dealing Tribunal, supra and leave the protagonists in the proceedings before it to contest the challenge. In Nattrass v Attorney General [1996] 1 HKC 480, at [18] to [22], Keith J discussed why it was inappropriate for a judicial officer to appear as a party in proceedings in which his decision was challenged. We think similar considerations apply in respect of a quasi-judicial appeal board or tribunal.

24.   In our judgment, the rationale for this general rule is thatan appeal board or a tribunal discharging quasi-judicial functionshould not compromise its impartiality by taking a stance in court proceedings to support its own decisions.  To do so is to enter into the arena, as such inconsistent with the appearance of an impartial decision-maker in an adversarial setting.  Such a coursecould well be perceived as siding with one of the protagonists and,in the eyes of the party challenging its decision, submissions on behalf of tribunal may readily be regarded as manifestation of a bias which had been harboured by the tribunal when it made its own decision.  Further, the record of the proceedings before the tribunal (including the record of its decision) should have sufficiently explained the reasons for its decision.  It would not be right for a tribunal to instruct counsel to appear at the judicial review to make submissions to support its decision which may be at variance or supplemental to what had already been set out in the records.  The active participation of an appeal board or tribunal in the judicial review against its decision would necessarily involve counsel acting on its behalf advancing submissions adverse to the contentions of one of the protagonists.”  

7.  It is submitted on behalf of the Board that the Court should apply these principles laid down in Davis and Orrico in making no order as to costs as between the applicant and the Board, unless these proceedings are to be categorized as exceptional ones where there was a flagrant instance of improper behavior on the part of the Board or where the Board had unreasonably declined or neglected to sign a consent order disposing of the proceedings, but none of these features are present in this case, nor was there any such finding made against the Board in the judgment.

8.  In the present case, the errors which this Court found the Board to have committed were:

   (a)   that it treated the applicant’s unsigned notice of Appeal as a nullity rather than an irregularity and rejected it ([26] – [27]);

   (b)   that it did not take into account the special circumstances causing the applicant’s late filing of his Notice of Appeal and refused his application for late filing ([37]).

9.  As such it was concluded in my judgment that high standards of fairness would have allowed the late filing of the applicant’s Notice of Appeal, and accordingly it was held that the Board’s decision was unreasonable or irrational.

10.  Mr Barnes for the applicant now argues that in respect of both decisions of the Board the test is satisfied in that its rejection of the Notice of Appeal as a nullity and its subsequent refusal of the application for late filing of the Notice of Appeal can be characterized as instances of improper behavior.

11.  For the first decision he submits that it was made without any legal basis as nothing in the Immigration Ordinance specified that an unsigned Notice could be treated as such, nor was there anything in the applicable Principle, Procedure and Practice Directions of the Board or the administrative equivalent, the Petition Guide, to support the rejection of the applicant’s Notice of Appeal, hence he argues that it was a decision without regard for elementary principles and was obvious and blatant.

12.  As for its second decision, Mr Barnes submits that the applicant was forced to apply to file his Notice of Appeal out of time because of the Board’s rejection of the Notice as a nullity, and that therefore the same argument as against the first decision also applies.

13.  As for the application for costs against the Director as the Interested Party, Mr Barnes submits that as the Court is required to seek to give effect to the underlying objectives of the Rules where it exercises any of its powers or interprets the Rules or any applicable practice, with the objectives including the aim of ensuring the expeditious disposal of a case, the facilitation of settlement, and the fair distribution of the resources of the Court, which are increasingly devoted to the disposal of judicial review matters, and is especially burdened with those in this field of law, and hence once joined as an Interested Party it was open to the Director to offer to agree to the consent disposal of these proceedings in accordance with the Practice Direction which would have the dual benefit of saving Court’s time and costs, but that the Director did not do so, and whose decision must be said to be considered and deliberate.

14.  Mr Barnes further submits that the Director as Interested Party had a direct interest in the outcome of the proceedings and the correctness of the decision of the Board, as unless overturned the Board’s decision was final and would have enabled the immediate removal of the applicant from Hong Kong by the Director, and that the Court’s discretion is not limited to making orders against unsuccessful party, but can and should extend to making an order against an interested party who could, but has not chosen to, consent to the disposal of proceedings in favour of the applicant.

15.  Mr Barnes submits that the Director must have been aware that the first decision of the Board to reject the unsigned Notice of Appeal was without legal basis, and hence his decision to just adopt a neutral stance andnot to concede the case ran the risk that the Interested Party would be made to bear the costs in the event that the Court allowed the challenge.  Hence it is only right and just that the Interested Party should bear half of the applicant’s costs.

16.  The exceptions to the rule that a tribunal that did not appear in the judicial review would not be liable for costs, as stated by Brooke LJ in Davis and endorsed in Orrico, are worth repeating here:

“ … when there was a fragrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings”.

17.  In my judgment I found the Board’s decision to reject the applicant’s unsigned notice of appeal as a nullity without legal basis, but should that error be regarded as a flagrant instance of improper behavior?  In Orrico Lam VP said about the test of such behavior as follows:

“ 41. We do not think it would be helpful for us to elaborate onthe test of flagrant improper behavior. Suffice for us to reiterate that the standard is the same as the test laid down by Parker CJ in R v Liverpool Justices, ex p Roberts [1960] 1 WLR 585, [1960] 2 All ER 384:

… it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.

42.   We agree that the criteria are stringent and not all obvious or even blatant errors on the part of a tribunal come within this test. After all, 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. …”

18.  His Lordship then proceeded to apply the test on the errors which the tribunal in that case, MSAB, was found to have made as follows:

“ 43. The errors which the Judge found the MSAB to have committed fall into several categories: (a) error of facts (in termsof identification of the location, the locus of those who claimed to be residents); (b) failure to give reasons; (c) failure to take account of relevant matters and taking account of irrelevant matters.

44.   We have read the decision of the MSAB of 13 February 2014 in light of the main judgment of the Judge.  Whilst we respectfully share the Judge’s view that the MSAB’s decision is erroneous for the reasons he gave, we do not regard those errors as flagrant improper behaviour.  They are not different in nature from errors which regrettably beset decisions from tribunals or appeal boards from time to time.  The quality of the reasoning in the decision does not meet the statutory requirement and for that the Judge quite rightly criticised it as ‘totally inadequate’ at [42] of the main judgment.  However, in our view, it is not a case of flagrant impropriety.”

19.  In the present case, I agree with the solicitors for the Board that my findings of the errors committed by the Board should be read in the context that there is no other statutory provision apart from section 37ZS of the Immigration Ordinance which stipulates how a Notice of Appeal should be completed or signed or that the failure of signing would render it a nullity or irregularity, and that the Board merely exercised its discretion, albeit wrongly, in rejecting an unsigned formal document prepared with legal representation.

20.  The same can be said about the Board’s second decision, whichwas again, I agree, an exercise of its discretion when it considered there were no known matters which might amount to special circumstances that might make it unjust not to allow the applicant’s application for late filing of his Notice of Appeal, of which I found it was erroneous not to have taken into account that the delay was in reality caused by the Board’s earlier rejection of the unsigned Notice of Appeal which was then within time.

21.  In KMM v Torture Claims Appeal Board [2016] 1 HKLRD 568, where it involved the same tribunal as in the present case, the appellant with the Director as the interested party obtained a consent order disposing of judicial review proceedings by quashing the decision of the Board, and on the appellant’s application for costs against the Board on the grounds that it was guilty of a flagrant instance of improper behavior by ignoring documentary evidence, a witness statement, the Country of Origin Information, and disregarding the law on state acquiescence, Lam VP held that the rationale for the rule in Orrico is as applicable to a specialist tribunal such as the Torture Claims Appeal Board as any other tribunal:

“ 20. We have read the Form 86 and the Decision of the TCAB carefully. With respect, we do not accept that all the criticisms advanced by Mr Kat against the TCAB were well founded. Whilst the manner in which the TCAB analysed the evidence was a proper subject for challenge (and relief being granted by consent), we do not think it is reasonably arguable that it is a case of deliberately closing one’s mind to the relevant evidence and legal principles. The TCAB attached to its written decision a list of documents which it had paid regard to and we should proceed on the basis that they had given due consideration to the same. Even for judicial judgments, it is recognised that the written reasons could not have fully ventilated each and every relevant argument advanced at the hearing and the full reasoning process could not be adequately captured by written text: Eagil Trust Co v Pigott-Brown [1985] 3 All ER 119; Piglowska v Piglowski [1999] 1 WLR 1360, 1372D–F; Englishv Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [17]–[21]; Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106 at [22]–[25]; Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 at [48].

…

22. We reiterate what had been said at [41] and [42] of Orrico. We respectfully disagree with Mr Kat’s submission that the standard should vary with a specialist tribunal made up of former judicial officers tasked with administering torture claims. The rationale for the rule in Orrico is as applicable to the TCAB as to the MSAB in that case. As we have said at [42] of Orrico, ‘the criteria are stringent and not all obvious or even blatant errors on the part of a tribunal come within this test’.

23. As explained in Orrico, there are good reasons why there should be such a high threshold for a quasi-judicial appeal authority to be held accountable for costs in respect of its own decision. Otherwise, the impartiality of such authority would be undermined and valuable resources assigned for processing CAT or similar claims (as well as the time of the members of the TCAB) would have to be diverted by the authority to defend claims for costs.

24.   The applicant’s case comes nowhere near to meeting the high threshold.”

22.  In the present case regarding the Board’s decisions, I agree that its errors as found in my judgment do not come anywhere near to meeting the high standard set down in Davis and Orrico, and for the reasons given above, I allow its application to vary the order nisi to no order as to costs between the applicant and the Board. 

23.  As for the Director as the interested party, in the absence of any evidence to suggest that he unreasonably declined or neglected to sign a consent order disposing of the proceedings, for similar reasons in §§19 – 20 above I do not agree with Mr Barnes that the fact that the Director did not take any step to concede the challenge against the Board that it must follow that he acted unreasonably, or that it would amount to a flagrant improper behavior on his part to justify ordering costs against him in the circumstances of this case.  

24.  As noted above, the Director as an interested party had at the very beginning of the proceedings taken a neutral stance regarding the applicant’s challenge against the Board’s decision, and so informed the applicant and the Court.  In the premises and for the reasons given, I also allow his application to vary the order nisi in that there be no order as to costs between the applicant and the Director as the Interested Party.

25.  Lastly, the applicant’s own costs are to be taxed on Legal Aid Regulations.