E. Ouster clause
Sometimes an applicant may face an “ouster clause”, that is, a provision in a legislation that seeks to remove (oust) the jurisdiction of the Court in judicial review. However, there is a strong presumption under common law that judicial review is not to be taken away unless it is done so with the most clear and explicit words.
Moreover, the House of Lords has in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 affirmed that the ouster clause in that case could not protect a decision which was a nullity. However, how a decision is considered to be a “nullity” for this purpose is still subject to debate, and is likely to be decided on a case-by-case basis. Hong Kong courts have applied the Anisminic case over the years, see for example Chan Yik Tung v Hong Kong Housing Authority [1989] 2 HKC 394.
In the Chan Yik Tung case, the applicant challenged the decision of then Tenancy Appeals Committee, which confirmed the Housing Authority’s decision to terminate the applicant’s tenancy at a cooked food stall. The applicant claimed that both the Tenancy Appeals Committee and the Housing Authority took into account irrelevant considerations. Section 19(3) of the Housing Ordinance (Cap. 283) provides that “No court shall have jurisdiction to hear any application for relief by or on behalf of a person whose lease has been terminated under subsection (1) in connection with such termination.”. The Court held that as a preliminary question, should the Applicant’s claim be made out, then decisions would be treated as a nullity and thus, the above provision could not have precluded judicial review.
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