Nguyen Ho and Others v. Director of Immigration and Another
Read the full judgment text of CACV 185/1990 on BabelCite. This Court of Appeal judgment was delivered on 17 January 1991 before Sir Derek Cons VP, Kempster JA, Clough JA.
Administrative law – judicial review – refugee status – asylum-seekers – interlocutory decision – leave to appeal to Privy Council – admissibility of evidence – Wednesbury unreasonableness – test of great, general or public importance. The applicants, nine Vietnamese asylum-seekers detained at Whitehead Detention Centre, brought judicial review proceedings contesting the rejection of their applications to be granted refugee status as defined in the United Nations Convention Relating to the Status of Refugees of 1951 as amended by the 1967 Protocol. Mortimer J. declined to admit particular evidence tendered for his consideration, and the Court of Appeal (Madam Lee Bun & Lee Ching Ming v. Director of Immigration, Civil Appeals 54 & 55/90) affirmed that decision on 29 June 1990. The applicants then sought leave to appeal to Her Majesty in Council, contending that the Court of Appeal was wrong to hold that Wednesbury unreasonableness is to be judged only with regard to the material before the lower tribunal, and that Bugdaycay v. Secretary of State for the Home Department [1987] 1 AC 514 (and perhaps Re "H" unreported CO/826/86) did not extend, in cases of political asylum and refugee status, the principles of admissibility set out in R. v. Secretary of State for the Environment: ex. p. Powis [1981] 1 WLR 585. Under Rule 2(b) of the Order in Council of 27 November 1957, leave to appeal on an interlocutory decision could only be granted if the questions involved are of great, general or public importance. The Court noted that the proceedings below had been separated and were continuing with regard to one Applicant, with judgment expected on 1 February 1991, and further applications for leave to appeal likely. It was therefore most desirable that the Privy Council be troubled with all the matters together rather than piecemeal. Application for leave adjourned sine die with liberty to restore; costs reserved.
Legal issues: Whether to grant leave to appeal to Privy Council on an interlocutory judicial review decision
Outcome: Application for leave to appeal to the Privy Council adjourned sine die with liberty to restore, with costs reserved.
Cited by 22 cases
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CACV000185/1990
BETWEEN
-------------- Coram: Hon. Sir Derek Cons, V.P., Kempster & Clough, JJ.A. Date of hearing: 17 January 1991 Date of delivery of judgment: 17 January 1991 ----------------- JUDGMENT ----------------- Sir Derek Cons, V.P., delivered the judgment of the Court: 1. This is an application for leave to appeal to Her Majesty in Council against the decision of this Court which affirmed the decision of Mortimer J., not to admit particular evidence tendered for his consideration in proceedings for judicial review brought by nine individuals contesting the rejection of their applications to be granted the status of refugees as defined in the United Nations Convention Relating to the Status of Refugees of 1951 as amended by the 1967 Protocol. 2. As it is an interlocutory decision we can only grant leave to appeal if we are satisfied that the questions involved are of great, general or public importance: see Rule 2(b) of the order in Council, 27th November 1957. 3. The questions which are said to be of that nature are, as we understand them, twofold. Firstly that this Court was wrong to decide that Wednesbury unreasonableness is to be judged only with regard to the material before the lower tribunal; secondly that Court was wrong to decide that Bugdaycay v. Secretary of State for the Home Department [1987] 1 AC 514 (and perhaps Re "H" unreported CO/826/86 31st July 1987) did not extend, with regard to cases of political asylum and refugee status, the principles of admissibility set out in R. v. Secretary of State for the Environment: ex. p. Powis [1981] 1 WLR 585 and approved by this Court in Madam Lee Bun & Lee Ching Ming v. Director of Immigration Civil Appeals 54 & 55/90 unreported 29th June 1990. 4. Since the hearing before this Court the proceedings below have been separated, and have continued for the moment with regard to one Applicant only. It is expected that judgment will be given in his respect on the 1st February. Whether the proceedings with regard to the other Applicants will then follow in turn immediately thereafter is a matter, of course, not for this Court but for the trial judge. But it seems to us almost inevitable that when the case of that one Applicant (and unless they are stayed those of the other Applicants also) have been finally dealt with at all levels, within this jurisdiction there will be further applications for leave to appeal to Her Majesty in Council. We take the view in that circumstance that it is most desirable that their Lordships of the Privy Council should, if they are going to be troubled at all with these various matters, be troubled with them all together rather than piecemeal. 5. We acknowledge that it was essential for Mr. Daniel Fung, on behalf of the Applicants, to bring his application at this time. But we propose, for the reasons just given, to adjourn the application sine die with liberty to either party to restore the application if and when it is thought appropriate; and we shall reserve the question of costs.
Representation: Daniel Fung, Q.C., & Michael Darwyne (M/s. Robin Bridge & John Liu) assigned by D.L.A. for all Applicants Michael Thomas, Q.C., & B.W.K. Whaley, Crown Solicitor for 1st & 2nd Respondents |
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