VAN CAN ON AND OTHERS v. THE DIRECTOR OF IMMIGRATION AND OTHERS

VAN CAN ON AND OTHERS v. THE DIRECTOR OF IMMIGRATION AND OTHERS

On appeals against refusal of legal aid to challenge decisions refusing refugee status to Vietnamese asylum-seekers, procedural fairness requires the Director of Legal Aid to supply applicants' solicitors with copies of the screening documents that she proposes to rely on or has supplied to the Registrar for the purpose of the appeals; statutory entitlements under s9 of the Legal Aid Ordinance mean the Director of Immigration cannot condition supply so as to prevent such disclosure, and mandamus is appropriate to compel disclosure.

Citation
VAN CAN ON AND OTHERS v. THE DIRECTOR OF IMMIGRATION AND OTHERS
Parties
Applicants: Van Can On and others; 1st Respondent: The Director of Immigration; 2nd Respondent: The Director of Legal Aid; 3rd Respondent: The Chairman of the Refugee Status Review Board
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 December 1996
Case Number
HCMP2037/1996
Procedural Posture
Judicial Review of Administrative Action; Appeals Under Section 26 of the Legal Aid Ordinance Challenging Refusal of Legal Aid to Prosecute Refugee Status Decisions / High Court Judgment on Disclosure Obligation and Remedies (certiorari and Mandamus)
Outcome
Order of certiorari quashing the Director of Legal Aid's decision and order of mandamus compelling disclosure of screening documents; costs ordered against Director of Legal Aid (to be taxed) and no order as to costs for Director of Immigration and Chairman of the Board
Legal Topics
Disclosure of Documents, Procedural Fairness (natural Justice), Judicial Review, Mandamus, Certiorari, Appeal Against Refusal of Legal Aid
Source Language
EN
Administrative Law Immigration Law Refugee Law Legal Aid Civil Procedure Disclosure of Documents Procedural Fairness (natural Justice) Judicial Review +3 more

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Parties

Van Can On and others

Applicants

The Director of Immigration

1st Respondent

The Director of Legal Aid

2nd Respondent

The Chairman of the Refugee Status Review Board

3rd Respondent

Procedural Posture

Judicial Review of Administrative Action; Appeals Under Section 26 of the Legal Aid Ordinance Challenging Refusal of Legal Aid to Prosecute Refugee Status Decisions / High Court Judgment on Disclosure Obligation and Remedies (certiorari and Mandamus)

Legal Issues

  1. 1 Whether procedural fairness requires the Director of Legal Aid to supply applicants' solicitors with the screening documents used in refusal of refugee status decisions when appeals against refusal of legal aid are heard by the Registrar
  2. 2 Whether section 9 and section 24 of the Legal Aid Ordinance or conditions imposed by the Director of Immigration preclude disclosure by the Director of Legal Aid
  3. 3 Whether the appeals to the Registrar are judicial proceedings to which Rules of Court apply and whether alternative procedural remedies exist

Ratio Decidendi

On appeals against refusal of legal aid to challenge decisions refusing refugee status to Vietnamese asylum-seekers, procedural fairness requires the Director of Legal Aid to supply applicants' solicitors with copies of the screening documents that she proposes to rely on or has supplied to the Registrar for the purpose of the appeals; statutory entitlements under s9 of the Legal Aid Ordinance mean the Director of Immigration cannot condition supply so as to prevent such disclosure, and mandamus is appropriate to compel disclosure.

Court Disposition

Order of certiorari quashing the Director of Legal Aid's decision and order of mandamus compelling disclosure of screening documents; costs ordered against Director of Legal Aid (to be taxed) and no order as to costs for Director of Immigration and Chairman of the Board

Orders

  • Certiorari quashing the decision of the Director of Legal Aid dated 12 April 1996 refusing to supply screening documents to applicants' solicitors
  • Mandamus ordering the Director of Legal Aid to supply applicants' solicitors with copies of such screening documents in relation to each applicant as have been supplied to her and which she intends to rely on or refer to at the hearing of the appeals under section 26(1) of the Legal Aid Ordinance or which have...