Az v. The Department of Immigration and Another

HCAL 203/2018

[2021] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 203 OF 2018  

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Decision on Costs: 24 June 2021

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DECISION ON COSTS

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1.Pursuant to leave granted by this Court on 7 January 2020 to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal/petition regarding her non-refoulement claim, the applicant subsequently obtained legal representation on Legal Aid and accordingly issued the originating summons on 7 April 2020, and effected service on both the Director of Immigration (“Director”) and the Board named as 1^st and 2^nd Respondent respectively.

2.As has been the usual practice in this type of applications, the Board indicated to the Court that it would adopt a neutral stance and therefore would not participate in the proceedings, while the Director who was initially named as the interested party in my decision but was as noted above made the 1^st Respondent in the originating summons took an active role in the proceedings represented by the Department of Justice (“DOJ”), and eventually after a series of negotiations reached an agreement with the applicant to dispose of the matter on the following terms which were endorsed by this Court on 28 October 2020 in gist as follows:

(a)  That the Board’s decision dated 8 January 2018 in dismissing the applicant’s appeal/petition be brought up and quashed;

(b)  That the appeal/petition be remitted to the Board for fresh determination bearing due reference to the observation of the Court as contained in paragraph 25 of the decision dated 7 January 2020;

(c)  That the substantive hearing fixed on 29 October 2020 be vacated; and

(d)  That the question of costs in the proceedings be determined on paper upon the filing of written submissions by the applicant and the Director.   

3.The matter now before me is the question of costs of the proceedings, as it is the applicant’s case that the Director should bear her costs of the proceedings, while the Director insists that the applicant should pay his costs following the disposal of the judicial review application as from 28 October 2020 onwards, but before considering their arguments, it would be relevant to first set out the chronology of the relevant events leading to the matter now before me based on that in the applicant’s submissions:

6.4.2020 –	Applicant obtained leave from Marlene Ng J to issue originating summons out of time during the Generally Adjourned Period (“GAP”) due to the Covid-19 pandemic
7.4.2020 –	Applicant issued the originating summons and effected service on both the Director and the Board
8.4.2020 –	Applicant wrote to DOJ for the Director proposing terms of settlement and to instruct counsel if no response to offer by 15.4.2020
14.4.2020 –	DOJ replied to point out that the originating summons was issued out of time and would not consider proposed settlement pending leave
15.4.2020 –	The Board wrote to indicate its neutral stance in the proceedings
16.4.2020 –	Applicant informed DOJ that leave had already been granted on 6.4.2020 and suggested that the Director should file affirmation in reply within 56 days
5.5.2020 –	Applicant wrote to DOJ that she would proceed with her case in the absence of any attempt by the Director to settle the matter
7.5.2020 –	DOJ replied that instructions were being sought from the Director on the applicant’s proposed terms of settlement and would response as soon as practicable
13.5.2020 –	Applicant was assigned counsel by the Director of Legal Aid
2.7.2020 –	the Court requested parties to provide dates for the substantive hearing
5.8.2020 –	the Court fixed the hearing on 29.10.2020
7.9.2020 –	Applicant sought DOJ’s consent to an anonymity order
11.9.2020 –	DOJ replied that they were still taking instructions from the Director and would reply within 7 days
14.9.2020 –	DOJ proposed to settle the matter under the relevant Practice Directions
22.9.2020 –	Applicant made comments on the draft settlement proposal and sought costs of the proceedings against the Director given his delay in responding to the settlement proposal and that counsel had been instructed for the forthcoming hearing
25.9.2020 –	DOJ replied concerning the terms of the proposed settlement including that there be no order as to costs
29.9.2020 –	Applicant replied with further comments on the proposed settlement insisting in costs against the Director due to his failure to respond until recently
6.10.2020 –	Applicant and Director reached agreement on proposed terms of settlement pending the Board’s endorsement
9.10.2020 –	The Board disagreed to the terms of the proposed settlement
10.10.2020 –	Applicant informed DOJ of intention to proceed with the preparation for the substantive hearing in the absence of settlement
14.10.2020 –	Applicant served hearing bundle on the Director and the Board
14.10.2020 –	The Board wrote to the applicant maintaining its disagreement to the terms of proposed settlement
15.10.2020 –	Applicant replied that the Board had no right to oppose the proposed settlement after indication of its neutral stance in the proceedings
16.10.2020 –	Applicant lodged hearing bundle with the court
16.10.2020 –	The Board indicated its agreement to the proposed settlement with slight revision
19.10.2020 –	DOJ signed the consent summons with proposed settlement
20.10.2020 –	Applicant filed the consent summons with proposed settlement into court
28.10.2020 –	The terms in the consent summons were approved and endorsed by the Court, and an order was made in terms accordingly.

4.It is the applicant’s submissions that the Director should bear her costs because his conduct during the judicial review application as shown above was unnecessary and/or improper which caused her to incur unnecessary costs, that the Director’s actions were not cost effective or as expeditiously as reasonably practicable, nor were they of reasonable proportion and procedural economy as normally required in the conduct of judicial review applications.

5.The applicant argues that as early as in April 2020 when she explicitly indicated her intention of settlement, the Director should have expressed his willingness to do so and requested her not to proceed with the matter for the time being but which he did not, nor did he explain why he could not do so, until long after the hearing date had been fixed and that her preparation work had been carried out including instructing counsel and lodging the hearing bundle which were wholly unnecessary and could have been easily avoided had the Director acted or conducted properly.

6.The applicant further submits that while the Board may have a different view as to the proposed terms of settlement, but given its earlier indication to take a neutral stance in the proceedings, and as its view is not binding on the Director and who does not take instruction from the Board, any disagreement on the part of the Board could not be a valid basis for the Director not to sign the settlement after having earlier fully agreed with the applicant to settle.

7.The applicant also submits that the fact that she is legally aided in the proceedings is irrelevant to her right and duty to seek costs against the Director.     

8.The Director’s position is that the proper costs order of these proceedings should be no order as to costs as he did not take any steps to resist the application for judicial review, and instead he did negotiate and facilitate settlement with the applicant out of good intention in a reasonable and sensible manner which eventually led to the consent summons being signed and approved by the Court on 28 October 2020 before the scheduled hearing, and as there is no good reason for the applicant to instead seek costs of the proceedings against him, she should therefore bear all the costs incurred after the settlement over this issue.

9.The Director further submits that the time taken for reaching a settlement with the applicant in the circumstances does not add any material costs to the case, and which in any event was not caused by the Director, and that as both parties are publicly funded with the applicant’s costs fully recoverable on legal aid taxation, it would be unreasonable to hold the Director liable to her costs which was not caused by him.    

10.It is relevant to first note that in my decision granting leave to the applicant to apply for judicial review of the Board’s decision, I directed that the Director be served with the documents as interested party, but somehow the applicant named the Director as the 1^st Respondent in her originating summons issued on 7 April 2020, and given how the application had progressed in the proceedings as outlined above, there was simply never any opportunity for an explanation to be sought and/or considered over this decision of the applicant, and given the fact that it was the Board’s decision which the applicant was challenging in her application, and that the Director, whose decision in the circumstances was not being challenged and in any event not susceptible to judicial review (see AM v Director of Immigration [ 2014] 1 HKC 416), was mainly there to assist in the proceedings and/or to facilitate settlement, of which it was said in KMM v Torture Claims Appeal Board [2015] HKCFI 833 that the Director would only be liable to pay costs if he had acted as the respondent in resisting the application.

11.Similarly, in RA v Betty Kwan, Adjudicator & Director of Immigration [2015] 1 HKLRD 676, where the applicant was not granted leave to challenge the Director’s decision, and that the Director was joined as an interested party so that the court might be assisted in the just determination of the proceedings, the court found no reason to order costs of the proceedings against the Director as he had agreed to the consensual disposal of the matters which was deemed as sensible and had resulted in the saving of costs and the resources of the court [13].      

12.In the present case, as noted in the chronology above, the Director was served with the papers through DOJ on 7 April 2020 within the GAP during which, as stated by DOJ, special work arrangements had been in place due to the coronavirus situation in both the Immigration Department and DOJ, in which an immigration officer of the former department, presumably the one involved in the Director’s earlier decision, would be responsible to give instructions to the latter department which would obviously then need to get all the papers and be familiarized with the facts of the case before being in the position to advise the Director as to the applicant’s proposed terms of settlement, as pointed out in DOJ’s submissions, or for that matter whether or not to resist her application.

13.As such and in the circumstances I do not find it reasonable that the Director or DOJ should indicate within 7 days, as required by the applicant, to respond or to agree with her proposed terms of settlement as noted in the chronology above, nor do I find any delay generally on their part in dealing with something as serious and important as the applicant’s non-refoulement claim.

14.Following the end of GAP on 3 May 2020, DOJ filed a Notice to Act for the Director on 8 May 2020, while the applicant was subsequently assigned counsel by the Director of Legal Aid. Thereafter negotiations between the parties then followed which eventually led to their agreement to the proposed settlement on 6 October 2020, but the consent summons with the proposed terms of settlement was not signed by the Director until 19 October 2020 shortly before the scheduled hearing due to certain issues raised by the Board, of which I do not see any reason why the Director would not be required to take into consideration, or why it would not be proper or appropriate for him to do so, even though it may have contributed to a slight delay, but for which certainly the Director should not be held liable, nor do I find the 5 months or so for parties to negotiate and eventually to reach settlement excessive or unreasonable in the circumstances,

15.Furthermore, that the consent summons was signed only shortly before the hearing may have been contributed by the fact that it was the Court in July 2020, only some two months after DOJ had filed Notice to Act for the Director, which required the parties to proceed to set the matter down for hearing, and perhaps on hind sight the parties should have sought indulgence from the Court for further time to continue with their settlement negotiations, but otherwise on any other view and in the absence of any evidence of any resistance or refusal on the part of the Director to negotiate or facilitate for settlement, or of any action by him to resist the applicant’s application, I do not find any fault or blame on his part, or for that matter on the part of any party, that the settlement was reached at such late stage before the scheduled hearing.

16.In the premises, and for the reasons given, I am not satisfied that the Director should bear the costs of the applicant’s judicial review application, or that she should in turn be liable for the costs of this unsuccessful request for costs, and that the appropriate order should be no order as to costs of the applicant’s application for judicial review including on the question of costs, and that her own costs to be taxed on Legal Aid Regulations, of which I so order accordingly.    

17.Lastly, I am grateful to counsel for both parties for their valuable assistances in the proceedings and in this application.

Mr Francis Ngan, instructed by KCL & Partners, assigned by Director of Legal Aid, for the applicant

Ms Angel Zhi, instructed by the Department of Justice, for the 1^st respondent