RE PM

HCAL106/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.106 OF 2013

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J U D G M E N T

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1. This is an application for leave to judicial review the decision of the Director of Immigration dated 28 June 2013 (‘the Decision’). The Director of Immigration rejected the torture claim of the applicant.

Background

2. The applicant, who was unrepresented at that time, filed a notice for leave to judicial review the Decision on 12 July 2013.  The applicant also filed a notice of appeal to the Torture Claim Appeal Board (TCAB) to challenge the Decision on the same day. [1]

3. In the interim, this court was expecting a new scheme for screening torture claimants as a result of the decision in C v Director of Immigration[2013] 4 HKC 563.[2]

4. By a letter dated 7 November 2013[3], the applicant indicated that there would be an amendment of the original Form 86 to include CITDP grounds[4] as well as other grounds for the judicial review.  The leave application was thus tentatively fixed to 19 May 2014.

5. By a letter dated 18 December 2013, the applicant pointed out that the decision of the TCAB was still pending.  The applicant would seek to adjourn this leave application sine die.  This court indicated in reply that the applicant might apply later in time if circumstances warranted.

6. By another letter dated 10 April 2014, the applicant applied for an adjournment again.  The main reason being that the decision of the TCAB was still pending.  It would be difficult for the applicant to finalize its pleading without the decision of the TCAB.

7. In the reply dated 15 April 2014, this court pointed out that the leave application should be dealt with on the basis that there was no decision from the TCAB.  Amendment of the original Form 86 might not be a proper procedure.  This court also drew the applicant’s attention to the case—RI (HCMP3295/2013)—that she might apply for re-screening of the CIDTP grounds before applying for judicial review.  By that time, the Director of Immigration had launched the Unified Screening Mechanism (USM).[5]

8. By a letter dated 17 April 2014, the applicant indicated for the first time that she would not pursue the CIDTP grounds.  She accepted that there was no exceptional circumstance to justify the leave application when the decision from the TCAB was still pending.

9. This court replied on 25 April 2014 that the leave application would proceed.

The leave application

10. On 19 May 2014, Mr Newman Lam, counsel for the applicant, formally applied for an adjournment of the leave application.  Alternatively, if adjournment was refused, Mr Lam argued, inter alia, that the Director of Immigration had misdirected himself in law and breached the high standard of fairness.[6]

11. Mr Lam relied on Order 53 rule 3(8) to seek an adjournment. Rule 3(8) states that:

“Where leave is sought to apply for an order of certiorari to remove the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for lave until the appeal is determined or the time for appealing has expired.”

12. Mr Lam accepted that at this stage there is no exceptional circumstance which justified judicial review.  As the decision of TCAB was not available, this court should not decide the leave application which would have the effect of “supplanting the statutory procedure” of appeal.  Mr Lam urged this court to adjourn the leave application awaiting the decision of the TCAB.

13. It is a well established principle that an applicant should exhaust all appeal procedures or alternative remedies before resorting to judicial review.  In the present case, the applicant should wait for the decision of the TCAB before filing Form 86.

14. If the TCAB reverses the decision of the Director of Immigration, there is no need for judicial review.

15. If the TCAB affirms the decision of the Director of Immigration, the applicant needs to judicial review both decisions.  She has to amend the original Form 86 to include the decision of the TCAB.  The question then is: whether the applicant should be allowed to amend the original Form 86 to include a challenge to the decision of the TCAB which post-dates the original Form 86.  If the answer is no, I would not adjourn the present hearing.

16. For actions by writ, amendment would not be allowed to add a cause of action which does not exist at the date of the issue of the writ.[7]  Mr Lam argued that this principle had no application in judicial review proceedings.

17. Mr Lam relied on R (O) v Hammersmith and Bulham LBC (CA) [2012] 1 WLR 1057 to support his argument that the original application might be amended to include challenges to new decisions made after the issue of proceedings.  He relied on the comments of Black LJ:

“…I recognize that judicial review claims can be something of a moving target and that it is not uncommon that, between the issue of proceedings and the hearing, the first decision is succeeded by a new decision (may be a succession of new decisions) in the attempt to remedy flaws in the first one …. Although the court may take the pragmatic view that it will adjudicate upon the real dispute between the parties without requiring distinct and separate applications for judicial review of each decision, Munby J stressed that the proper applications to amend have to be made and the pleadings put in order so that everyone knows in advance the nature of the case being made. I would endorse that and add that it may be that appellate proceedings in the Court of Appeal are perhaps less amenable to this pragmatic approach than are first instance proceedings for judicial review.” [8]

18. It is necessary to point out at this stage that R (O) concerned the rights of a claimant under the Children Act 1989 in England.  As set out in section 1 (1) of the Act, the child’s welfare shall be the court’s paramount consideration.[9]

19. The facts of R (O) were peculiar.  I set out sufficient background for our present purposes as follows.  The local authority made three successive decisions in January, March and May 2011 about the education placement of a child who suffered from severe autism.  The parents of the child disagreed with the January decision but could not resolve the differences after discussion with the local authority.  In March, the local authority made a concluded decision (‘March decision’) for the placement of the child.  This March decision modified the January decision in several aspects.  The parents disagreed and applied for judicial review of the March decision.  In the judicial review hearing, the ‘March decision’ was set aside but the court refused to make the order sought by the parents.  Both the parents and the local authority appealed.  While waiting for the hearing in the Court of Appeal, the local authority modified the March decision in May 2011 (‘May decision’).  The parents still disagreed.  Instead of taking fresh proceedings to judicial review the ‘May decision’, they asked the Court of Appeal to resolve the matter taking into account the ‘May decision’ also.  The local authority objected to this approach as the Court of Appeal had no original jurisdiction to do so.

20. In giving permission to consider the ‘May decision’, Black LJ stressed that he had considerable sympathy with the stance of the local authority.  His Lordship continued:

“... I would not wish it to be thought that the course we have taken here will be open in every case. We have permitted argument about the May decision for essentially pragmatic reasons, not the least because of the pressing need to reach a decision so that the new arrangements for the claimant can start at the beginning of the new school term and for reasons of cost.” [10]

21. His Lordship then went on to give the comments as cited in paragraph 17 above.

22. In my judgment, the Court of Appeal was heavily influenced by the need to reach a decision for the child before the new school term.  In addition, the Court of Appeal must be concerned with the requirement that the child’s welfare should be of paramount importance.[11]

23. The situation in our present case is very different in several aspects:

(a)  We do not have any pressing need to take a pragmatic approach as the Court of Appeal did in R (O).

(b)  The successive decisions of the local authority were a modification of its previous decisions.  The approach adopted by the Court of Appeal in England allowed the real dispute to be adjudicated.  The situation is incomparable with our case.  The decision of the TCAB is a complete re-consideration of that of the Director of Immigration.  The reasons for challenging either decision could be quite different.

(c)  The decisions of the Director of Immigration and the TCAB are distinct orders which should be dealt with under separate heads in judicial review.

24. Mr Lam further cited R (P) v Essex County Council [2004] EWHC 2027 (Admin).  The issues in this case also concerned claimants under the Children Act 1989.  In gist, a claimant who needed accommodation might challenge the decisions of the Council in three stages: first—the Council failed to make an initial assessment of his needs; secondly, if it did, the Council based on the wrong section for assessment[12]; thirdly—despite the assessment, the Council had failed to provide suitable accommodation.  Munby J recommended a pragmatic approach.  While the three assessments might be distinct and separate subject matters for judicial review, however, claimants might be allowed to amend the original proceedings to include the subsequent assessments.

25. I repeat the comments in paragraph 23 in relation to R (P).  In my view, both R (O) and R (P) are distinguishable given the nature of issues in those cases.

26. Mr Lam pointed out that in Total Lubricants Hong Kong Ltd. v Christophe De La Cropte DeChanterac, FAMC41/2013, Fok PJ stressed the importance of cost-effectiveness of the proceedings as well as the promotion of a sense of reasonable proportion and procedural economy in the conduct of proceedings.[13]  This case concerned the adding of parties to a claim, it had nothing to do with adding a new cause of action.

27. Mr Lam also stressed the wide discretion for amendment as set out in Order 53 rule 3(6) and 6(2).  The former allows amendments at the leave stage while the latter allows amendments at the substantive argument stage.  Both rules allow amendment to add further grounds to challenge a decision[14] or to seek additional relief.  In my view, nothing in these rules allows, by way of amendment, the addition of a reviewable decision which does not exist at the date of the original Form 86 or 86A.

28. Even in the light of CJR that a court should adopt procedural economy as suggested by Fok PJ above, there is no authority to support the proposition that a writ may be amended to include a cause of action which does not exist at the date of the writ.

29. In Wing Siu Co. Ltd. v Goldquest International Ltd. [2003] 2 HKC 64, Rogers VP (as he then was) pointed out:

“In the light of those cases it cannot be said that the original rule in the Eshelby cases has disappeared. The courts in England have already been disposed to adopt a more flexible attitude, specifically, where they permitted the pleading of subsequent events which clarify why a claim could be made based on a cause of action which existed at the date of the issue of the writ. No decision has been brought to our attention which has gone so far as permitting, in the face of opposition, an amendment which would introduce into a writ a cause of action which simply did not exist at the date of the issue of the writ.”[15] (emphasis added)

30. Mr Lam mentioned the limitation of the ‘relation back’ theory which states that the amendments of pleadings relate back to the date of the pleadings.  It is exactly this limitation that Rogers VP disallowed the introduction of a cause of action which did not exist at the date of the issue of the writ in Wing Siu.  Rogers VP cited the criticism of the theory made by Brandon LJ in Liff v Peasley [1980] 1 WLR 781:

“There is, in my view, a high degree of artificiality and unreality about the ‘relation back’ theory. There is no reason to quarrel with the general proposition that an amendment of a writ or a pleading relates back to the original date of the document amended….This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas of averments made between existing parties in respect of a cause or causes of action already raised. Where, however, the amendment concerned involves the addition of a new party or the raising of a new cause of action, it appears to me to be unrealistic and contrary to the common sense of the matter to treat it a relating back in the same way.” (emphasis added) [16]

31. For the sake of completeness, in Liff, Brandon LJ rejected the argument that the addition of a new defendant should relate back to the date of the original writ.  His Lordship opined that to do so would deprive the new defendant the defence based on limitation.[17]  Liff however was decided on some other procedural points irrelevant to our case.

32. In my view, despite a more flexible approach in amending pleadings since CJR, the addition of a cause of action which does not exist at the date of the writ would not be allowed.  I see no valid reason to distinguish this approach for actions by writ and judicial review proceedings.  Similar principles should govern.

33. In our case, the amendment to include the decision of TCAB which did not exist at the date of the original Form 86 is tantamount to an addition of a new cause of action.  It would not be allowed.

34. In X v Secretary for Security, HCAL50/1998, Keith J adjourned the leave application for judicial review of a deportation order.  The reason being that the applicant had appealed to the Registration of Persons Tribunal concerning his permanent resident status.  If the applicant succeeded, there would be no need for judicial review of the deportation order.

35. I agree with Keith J’s decision as the original pleadings were in order.  In our case, the original Form 86 did not include a review of the decision of the TCAB.  Even when it is available, the applicant still needs to overcome the hurdle of amending the original Form 86.

36. I have to stress that judicial review is the last resort.  A claimant must exhaust all revenues of appeal or alternative remedies before applying for judicial review unless there are exceptional circumstances.  To allow amendment of an existing Form 86 to challenge subsequent decisions would be a blatant disregard of the above principle.

37. Given the analysis above, the amendment of the original Form 86 would not be allowed.  There is no point to adjourn the leave application.  I refuse the application for adjournment.

Should this court review the Decision at this stage?

38. Alternatively, Mr Lam invited this court to consider the Decision.  He set out detailed grounds in his skeleton argument.

39. Mr Lam fairly admitted in paragraph 16 of his skeleton argument that there was no exceptional circumstance which might justify judicial review at this stage bypassing resolution by the appeal procedure. [18]

40. In my view, it is inappropriate to consider the Decision at this stage.  I should not usurp the role of the TCAB.  In RI HCMP3295/2013, in refusing to grant leave for judicial review of the expanded claims, Lam VP commented:

“In short, in the absence of a determination by the primary decision-maker when it is possible for an applicant to submit his or her CIDTP claim and/or Refugee claim to that decision-maker for consideration, it is pre-mature for the court to entertain such claims by way of judicial review. To allow such claims to be advanced in the absence of a primary decision is to arrogate the court to the role of a primary decision-maker. This is not the proper role of the court in an application for judicial review.”

41. As the decision of TCAB is pending, it is appropriate to wait for the result before proceeding to judicial review.  I therefore refuse the application for leave to judicial review the decision of the Director of Immigration.

42. I make an order nisi that there is no order for costs of this application.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.