Case Detail

CACV000072A/1997

IN THE COURT OF APPEAL

1997, No. 72
(Civil)

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	CONG VAN HA

	AND

	DIRECTOR OF IMMIGRATION

1997, No. 118
(Civil)

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	CONG VAN HA, CONG HIEN TUONG, CONG HIEN QUYNH CONG HIEN PHUONG
	AND

	DIRECTOR OF IMMIGRATION (REFUGEE STATUS REVIEW BOARD)

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Coram : Mortimer and Godfrey, JJ.A. and Cheung, J. in Court

Date of judgment : 18 June 1997

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J U D G M E N T

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Mortimer, J.A.:

1. This is an adjourned appeal against Yeung J's refusal to allow the applicant Cong Van Ha to amend her application for judicial review to allege that she did not have a fair hearing before the immigration officer on the ground that he failed to record some, and omitted to record other, material matters during the screening interview.

2. The application to amend was made on the first day of the hearing and it took three days. It was made at the last minute. Issues of fact concerning the procedure adopted during the decision-making were raised 5 1/2 years after the event. On the face of it, it was an application unlikely to succeed. Indeed, it did not.

The Judge's discretion

3. The judge gave reasons for the exercise of his discretion to refuse. Some of those reasons are seriously flawed. The account given by the applicant compared with that that recorded by the immigration officer differed. She says she advanced more than appears in the notes. But based on those accounts, the judge formed an adverse view of the applicants' credibility. In this passage, he said:

"It is not difficult to understand why she chose to place emphasis on certain events which were not mentioned in the earlier documents or in her earlier letter. It will be naive for the court not to recognise that people in Cong's position will have their knowledge on the criteria for refugee improved with the passage of time. It will also be naive for the court not to recognise that their stories of what had happened to them when they were in Vietnam would be tailored in accordance with such improved knowledge in order to increase of their chances of being screened in as refugees. It will be difficult if not impossible to place any reliance on their evidence in such circumstances to expect the court to resolve the dispute as to fact as to what was said or not said in the interview between two persons, both of whom cannot reasonably be expected to have any independent recollection of the event and at least one of them would be likely to tailor her evidence in order to achieve her purpose will put the court in an almost impossible position in the circumstances of the present case."

Later he said:

"I am satisfied that the proposed amendment is just a logical step of bringing her case in line with her recently improved story."

That view of the applicants' credibility was not one the judge was entitled to take on the affidavit and the documents.

4. Further, in another passage, the judge said:

"It is not the primary function of the court to resolve disputes or mistakes as to fact."

5. That is usually the position but sometimes and relevant to this application it is the task of the judge on a judicial review to decide facts. Not, of course, facts which are in the province of the decision-maker.

6. There are two obvious circumstances in which the facts are the judge to decide. The first is where there is a dispute about facts upon which the jurisdiction of the decision-maker depends. Secondly, and relevantly, where there is a dispute about what took place before the decision-maker. On that matter, the judge was also wrong.

7. He rightly decided that the application came late. The reasons for rejecting the application he set out in this passage:

"The interview took place of course almost 6 years ago. No one in my view, either Yip or Cong, can reasonably be expected to have independent recollection of what was said or not said during the interview."

8. In the usual way that would have been an overwhelming point. But unfortunately that was not the situation here. It is clear from the affidavits themselves that the witnesses both had some independent recollection of the interview and of course contemporaneous notes were made by the immigration officer.

9. Now as those reasons for refusing the application were plainly wrong it falls to this Court to exercise its own discretion. I turn to that matter.

This court's discretion

10. It is true to say that these points were not raised with any clarity in the application itself. There are two paragraphs in the 1st applicant's first affirmation, paras. 4 and 5, which touch upon the point but which do not condescend to any detail. But, in accordance with his duty to set out all the relevant facts within his knowledge, the immigration officer does engage the dispute about what happened in the interview. More importantly perhaps, when doing so, he concedes that the omissions complained of, and relied upon, were material to his decision. It follows that such errors, if established may involve a risk of injustice.

11. This being a refugee case, for my part, I would allow the amendments. I think fairness requires this and in those circumstances I would allow the appeal.

12. It follows that the matter may have to go back to the judge. That will involve him handling this matter with considerable care. The issues of fact will have to be clearly defined and of course it may be necessary to order the witnesses attend for cross-examination. But those matters are in the future. I would for my part allow this appeal.

Godfrey, J.A.:

I agree.

Cheung, J.:

I also agree that the appeal is allowed.

Mortimer, J.A.:

We allow the appeal and we will hear counsel upon any consequential orders we should make.

(Barry Mortimer)	(G.M. Godfrey)	(P. Cheung)
Justice of Appeal	Justice of Appeal	Judge of the High Court

Representation:

Mr Nigel Kat (M/s Pam Baker & Co) for Applicants

Mr Anthony Chan (Crown Solicitor) for Respondent

CACV000072/1997

IN THE COURT OF APPEAL

1997, No. 72
(Civil)

________________

BETWEEN
	CONG VAN HA	Appellant/ Applicant

	AND

	THE DIRECTOR OF IMMIGRATION	Respondent/ Respondent

________________

Coram: Hon. Litton, V.P., Godfrey and Ching, JJ.A. in Court

Date of hearing: 29 April 1997

Date of judgment: 29 April 1997

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from a ruling of Yeung, J. given on 18 March 1997 in the course of the hearing of an application for a judicial review. The applicant in the judicial review (the appellant before us) is one Cong Van Ha and the respondent is the Director of Immigration. The case is one of those many tragic, indeed harrowing, cases involving an illegal immigrant from Vietnam of Chinese ethnic origin.

The judge's ruling

2. The appellant seeks to challenge in this appeal the judge's decision to refuse the appellant leave to amend her statement in support of her application so as to raise points connected with the conduct of an interview by an immigration officer with the appellant. It is now sought to allege that the interview (which took place as long ago as 1991) had been irregularly conducted and unsatisfactorily recorded by the immigration officer.

Background

3. Under O.53 r.6 of the Rules of the Supreme Court, the court may, on the hearing of the motion or summons by which the judicial review is instituted, allow an applicant to amend his statement in support of his application, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used by the applicant. As it seems to me, this discretionary power to allow or not to allow such amendment is no different in nature from the power to allow or not to allow amendments conferred on the court by O.20 of the Rules of the Supreme Court in relation to civil litigation generally. As to those powers of amendment, it is well-settled that the decision whether or not to allow a proposed amendment is "entirely within the discretion of the judge, with which this court ought to be very chary in interfering"; see Byrd v. Nunn (1877) 7 Ch. D. 284, per James, L.J. at p. 286.

When should this court interfere?

4. The Court of Appeal has power at any stage of the proceedings to entertain an appeal from the refusal of a judge to grant leave to amend, both in ordinary civil litigation and in judicial review proceedings. But only in exceptional cases, where this court concludes that the judge was plainly wrong to have refused leave to amend, will it interfere, more particularly when the hearing before the judge has already commenced, and it is sought to appeal the judge's ruling before the hearing is concluded.

5. In E. McGarry (Electrical) Ltd v. Burroughs Machines Ltd, 14 April 1986, CA Transcript 346 (unreported) Dillon, L.J., in an appeal in a case which the judge had granted leave to appeal his interlocutory ruling to the Court of Appeal in the course of the hearing at first instance, said this:

"It is highly undesirable that there should be appeals in the course of the trial of actions. It is altogether better that matters of an interlocutory nature which crop up in the course of a trial should work themselves out in the course of the same trial without interlocutory recourse to this court before the facts have been completely determined and the trial has been concluded."

6. Llyod, L.J. said this:

"The Criminal Division of this court never hears appeals in the course of the trial. The Civil Division only does so in exceptional circumstances. The reason is not just that it interrupts the trial, although that is usually a sufficient reason. There is a further reason. If it became the practice to give leave to appeal in the course of a trial, this court would soon be overwhelmed with appeals, many of which would or might in the event prove academic."

7. Lloyd, L.J. cited an earlier case, Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529, in the course of his judgment in which Templeman, L.J. had said this :

"I agree wholeheartedly that appeals in the course of a trial should be firmly prevented or discouraged save in the most exceptional circumstances."

The appellant's argument

8. Mr. Kat, for the appellant, in a powerful argument, while not challenging any of this, submitted to us that this case was exceptional. He pointed out although the hearing in the present case commenced before the judge on 14 March 1997 and the judge's ruling was not made until 18 March 1997, the hearing began with the application for leave to amend which he had made to the judge. The judge made his ruling on the proposed amendment without having embarked on the substantive hearing at all. In those circumstances, says Mr. Kat, the case should be treated as if it were one in which the application for leave to amend had been made some time before the hearing started, and ought not to be treated as one made during the course of the hearing.

Conclusion

9. I do not agree. The hearing of the appellant's application for a judicial review has commenced. The fact that the first thing with which the judge was faced was an application by the appellant for leave to amend does not make any difference; that was still an application made in the course of the hearing. The judge has exercised his discretion to refuse the amendment, and in the absence of most exceptional circumstances, we should not interfere with that exercise of discretion at this stage of the proceedings.

10. For my part, I see no such exceptional circumstances here. I do appreciate, of course, that if at the end of the day the judge, having refused the application for leave to amend, finds against the appellant, she will be forced to come back to this court if she is advised that she has good grounds for appeal on the ground that, but for the refusal of leave to amend, she would have won before the judge. But be that as it may, the better course is, in my opinion, for us to adjourn this appeal generally, with liberty to the appellant to restore it if so advised only after the judge's determination of the case. By then the facts and the issues will be much more clearly identified, and it will be possible to say with some certainty whether or not the refusal of leave to amend was of such significance that a substantial miscarriage of justice must have occurred. For this court to spend half a day, or possibly even more, on this point now, before the judge of first instance has had an opportunity properly to review all the material before him, seems to me to be quite wrong and wholly unsatisfactory.

11. We do have a discretion of our own whether or not to entertain the appeal at this stage, as the appellant invites us to do, and I appreciate entirely that there is room for more than one view about this. I would not myself, having heard Mr. Kat's argument, now be disposed, as at one stage I was, to consider this appeal as one which, by reason of its prematurity, verges on an abuse of the process of the court. I do however still think that it would be very undesirable for us at this stage of these proceedings to attempt to review the judge's exercise of his discretion in refusing leave to amend.

12. For the reasons I have given, I would myself adjourn this appeal generally, as I have suggested, and I have nothing further I wish to add.

Ching, J.A. :

13. For my part, I am not satisfied that this Court should not interfere at this stage with the exercise of the discretion of the Judge below in refusing leave to amend.

14. I think that exceptional circumstances may well be found in the wording of the judgment which should persuade us to hear argument upon the matter now. I would then accept Mr. Kat's point that, as permitted by O.53 r.6(2), provision is made for an amendment upon the hearing. The hearing in question had not begun at all and therefore would not have been interrupted by any interlocutory appeal. As a practical matter, justice in this case might be greatly delayed if we were not to hear the appeal against the refusal to amend now. The applicant will have to contest the substantive hearing without all of her points available. If she were to lose at that substantive hearing she would no doubt then have to come back to this Court and then, if successful here, would possibly have to contest the matter again.

15. As, however, I am in the minority, I say nothing further.

Litton, V.-P.:

16. I agree with the judgment delivered by Godfrey JA.

17. The matter is not an easy one. Mr Kat has a perfectly valid point. At the end of the day, the key issue is whether this court in the exercise of its appellate function should interfere with what essentially was a matter of case management in the lower court. If the applicant should ultimately fail in her application for judicial review and should appeal to this court then we can look at the matter in its entirety. The proposed amendments can then be seen in their proper setting. I would accordingly make the order as proposed by Godfrey JA which I understand to be as follows: This appeal should be adjourned with liberty to restore after the hearing of the application for judicial review in the High Court. We need to hear the parties as to the costs.

(Henry Litton)	(G.M. Godfrey)	(Charles Ching)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Nigel Kat (M/s. Pam Baker & Co. assigned by D.L.A.) for the Appellant/ Applicant

Mr. Marshall, Q.C. & Mrs. Shirley Lo (Attorney General's Chambers) for Respondent/Respondent

CONG VAN HA v. DIRECTOR OF IMMIGRATION

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