SA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1191/2019

[2020] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1191 OF 2019

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DECISION ON COSTS

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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 Applicants, of one family, are non-refoulement claimants.  The chronology relevant for the present purpose is as follows:

29.01.2015	The Director rejected the Applicants’ non-refoulement claims based on risk of torture, risk of CIDTP and/or risk of persecution (“the Director’s 2015 Decision”)
27.01.2017	The TCAB, constituted by its Deputy Chairperson, Mr William Lam (“the Adjudicator”), dismissed the Applicants’ appeals / petitions against the Director’s 2015 Decision (“the TCAB’s 2017 Decision”)
01.12.2017	The Director rejected the Applicants’ non-refoulement claims based on BOR 2, and refused to reconsider their claims based on new information, namely, that a death sentence had been passed on the 1st Applicant in Yeman (“the Director’s 2017 Decision”)
09.11.2018	The TCAB, constituted by the Adjudicator, dismissed Applicants’ appeals / petitions against the Director’s 2017 Decision (“the TCAB’s 2018 Decision”)
06.05.2019	Form 86 filed challenging the TCAB’s 2017 Decision, the Director’s 2017 Decision and the TCAB’s 2018 Decision
07.05.2019	Court fixed a directions hearing to consider the further conduct of the leave application, including the question of how the issue arising out of the loss of a laptop computer by the Adjudicator raised in the Form 86 ought to be disposed of
05.06.2019	The TCAB sent a letter to the court (copied to the Director and the Applicants’ solicitors) confirming that it would adopt a neutral stance in these proceedings and that the Applicants’ personal data were not contained in the lost laptop computer
06.06.2019	Directions hearing, in which the Applicants’ counsel confirmed that the Applicants would not pursue the issue arising out of the loss of the laptop computer, and Senior Government Counsel stated that the Director would oppose the application for leave to apply for judicial review
18.07.2019	Draft Amended Form 86 filed and served
04.11.2019	Court gave directions for a rolled-up hearing of the application for leave to apply for judicial review and the substantive application for judicial review
11.12.2019	Commencement of negotiation to dispose of the application for judicial review by consent
09.09.2020	Statement and Draft Consent Order filed by the parties pursuant to paragraph 23 of Practice Direction SL-3
14.09.2020	Court granted leave to the Applicants to amend the Form 86, quashed the TCAB’s 2017 and 2018 Decisions and remitted them for fresh consideration by a differently constituted board, and gave directions for the issue of costs to be dealt with on paper

3.  In the Amended Form 86, the Applicants no longer challenge the Director’s 2017 Decision, and withdrew the issue relating to the loss of the laptop computer.

4.  The Applicants’ positions on costs are as follows:

(1)  primary position - costs should follow the event, meaning that the TCAB should bear their costs of these proceedings;

(2)  secondary position - the Director should bear their costs.

5.  The Director’s position on costs is that there should be no order as to the costs of these proceedings, save that he should have the costs incurred for the preparation of the submissions on the issue of costs.

NO PROPER BASIS TO ORDER TCAB TO PAY APPLICANTS’ COSTS

6.  The relevant principles were considered in this court’s recent decision in MI v Torture Claims Appeal Board [2020] HKCFI 2154.  As pointed out at §5 of the court’s decision in MI, the principles set out in §47 of the judgment of Brooke LJ in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 were 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.”

7.  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.

8.  In the present case, the Applicants argue that the TCAB’s 2017 and 2018 Decisions were arrived at in a manner that was flagrant and improper by the Adjudicator, in that:

(1)  the Adjudicator committed fundamental errors of law when assessing the relevance of the COI submitted by the Applicants;

(2)  the Adjudicator wrongly disregarded evidence demonstrating there was a death sentence issued against the 1^st Applicant and made flippant inappropriate remark;

(3)  the Adjudicator’s approach in rejecting the COI and evidence submitted by the Applicants is apparently biased.

9.  I have read and considered the TCAB’s 2017 and 2018 Decisions.  Whilst it must be accepted that the Adjudicator had made reviewable error(s) of law, I do not consider that the Adjudicator’s assessment of the COI submitted by the Applicants and his rejection of the Applicants’ evidence show bias on his part, or are such as to amount to flagrant or improper conduct.

10.  In so far as the death sentence for the offences of “inciting sectarian conflict and strife”, and “incitement to break the Islamic religion” allegedly passed on the 1^st Applicant in absentia by the “Supreme Judicial Council in Yemen” on 21 January 2017 is concerned, that matter was considered by the Adjudicator at §§8 to 16 of the TCAB’s 2018 Decision.  The Adjudicator was not impressed by the 1^st Applicant’s evidence, and considered that there was no risk to his life under BOR 2 even if he were to return to his home country, for the following reasons: (i) the relevant provisions under Yemeni law provided that even if a death penalty had been imposed on the 1^st Applicant in his absence, the penalty could be commuted by his repentance, (ii) there were serious doubts about the authenticity of the relevant judgment produced by the 1^st Applicant, (iii) the 1^st Applicant originally said he unaware of who was the instigator of the lawsuit leading to the judgment against him, but later suggested it was a person called “Al Gaafari” whom he later said was actually a “tribe”, (iv) the Adjudicator considered 1^st Applicant’s explanation of the basis of the lawsuit (namely, a naked photo or naked photographs of him and his wife) to defy common sense, (v) the delay of 4 years between the date on which the 1^st Applicant left Yemen (March 2013) and the date of the judgment (January 2017), and (vi) on the basis of the 1^st Applicant’s own evidence, he did not denounce Islam or delivered any speech or do any act which contradicted Islam, and there was thus no cause for him to be convicted of the relevant offences.  While one may disagree with the Adjudicator’s analysis or part of his analysis, I do not see how it can be said that the Adjudicator acted flagrantly or improperly in deciding to reject the 1^st Applicant’s evidence or the BOR 2 claim in the circumstances of this case.

11.  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).

12.  In all, I reject that Applicants’ primary contention that the TCAB should pay any part of their costs.

DIRECTOR SHOULD PAY A PORTION OF APPLICANTS’ COSTS

13.  Up to 11 December 2019, the Director’s stated position was that he would oppose the application for leave to apply for judicial review.  At the directions hearing on 6 June 2019, the Director (through Senior Government Counsel) stated that he would oppose the leave application.  Ms Wong says that position was based on the then Form 86, which included a claim in relation to “the laptop incident” which has since been deleted from the Amended Form 86.  It was not, however, suggested at the directions hearing that the Director’s opposition to the leave application was limited to that issue only.

14.  The first time that the Director indicated a willingness to dispose of the present application for judicial review pursuant to paragraph 23 of Practice Direction SL-3 was in a letter from the Department of Justice to the Applicants’ solicitors dated 11 December 2019.

15.  Having considered the papers and adopting a broad approach[1], I consider that the Applicants are more likely to win on the merits in their application for judicial review of the TCAB 2017 and 2018 Decisions.  It follows that, prima facie, the Director ought to pay the Applicants’ costs of these proceedings, at least up to 11 December 2019.

16.  However, the costs payable by the Director to the Applicants should be reduced because of the following matters:

(1)  It took the parties some considerable time to finally agree on the terms on which the application was to be disposed of by consent, partly because the Applicants originally suggested that their non-refoulement claims should be remitted to the Director for fresh determination (see the letters’ dated 18 December 2019 and 19 March 2020 respectively from the Applicants’ solicitors).  The Applicants’ position that the non-refoulement claims should be remitted to the Director for fresh determination was plainly wrong in principle, because the subject matters of the present application were decisions made by the TCAB.  Upon quashing of those decisions, they should be remitted to the TCAB for fresh consideration.  There was no basis to remit the non-refoulement claims back to the Director for consideration afresh.

(2)  In the Applicants’ original Form 86, a complaint was made arising out of the Adjudicator’s loss of his laptop computer.  As in the case of MI, there was never any proper basis for the Applicants to raise that complaint, in the absence of any evidence that the laptop computer contained their personal data.  As stated in §17 of this court’s decision in MI -

“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.”

(3)  The Applicants’ original challenge to the Director’s 2017 Decision by way of judicial review was also wrong in principle, having regard to the judgment of the Court of Appeal in Re Moshin Ali [2018] HKCA 549.

17.  On a broad-brush basis, I consider that the Applicants ought to have 80% of their costs of these proceedings up to 14 September 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 have only been partially successful.  In particular, they have failed in their primary position that the TCAB should bear their costs.  I would therefore make an order that the Applicants shall have 50% of their costs after 14 September 2020.

DISPOSITION

18.  The Director shall pay to the Applicants (i) 80% of their costs of these proceedings up to 14 September 2020, and (ii) 50% of their costs thereafter, to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.