“A” v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 69 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 69 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1. The applicant is a Sri Lankan and a CAT[1] claimant.

2. This is the applicant’s application to judicial review:

(1)   The decision (“the Director’s Decision”) of the Director of Immigration (“the Director”) made on 23 December 2010 to reject his CAT claim; and

(2)   The adjudicator’s decision (“the Adjudicator’s Decision”) made on 9 March 2011 to dismiss the applicant’s petition for the reconsideration of his CAT claim.

3. The applicant seeks to quash the 1^st and/or 2^nd Decisions.

4. The grounds pursued by Mr Dykes SC (together with Ms Denise Souza) for the applicant at the hearing[2] are in gist as follows[3]:

(1)   The adjudicator failed to grant the applicant an oral hearing, which was procedurally unfair in the circumstances of his case (“Ground 1”) (see paragraphs 31-40 of Form 86);

(2)   The adjudicator erred in law in applying the “official capacity” test as contained in Article 1 of the CAT (“Ground 4”) (see paragraphs 64-72 of Form 86);

(3)   The Adjudicator’s Decision is unlawful as the adjudicator wrongly carried out an appeal and not a hearing de novo in disposing the petition (“Ground 3”) (see paragraphs 52-63 of Form 86).

5. Leave was granted to the applicant to apply for judicial review on these grounds by Lam J (as the learned VP then was) on 29 May 2012.

6. When it comes to this hearing, the applicant has also sought leave to amend the Form 86 to include the following grounds in support of the judicial review:

(1)   A systemic challenge to the process of adjudications on petitions generally based on the principal arguments that:

(a)   The effect of various Practice Directions and Guidance published by the Secretary for Security (“the Secretary”) relating to the work of adjudicators in general when dealing with petitions is to fetter the adjudicators’ discretion in deciding when and whether to hold an oral hearing.  These Directions and Guidance are thus systemically unlawful;

(b)   The Secretary lacked the legal competence in publishing the Directions and Guidance.

(collectively “the Proposed Systemic Challenge Ground”)

(2)   The failure of the Director and adjudicator to screen the applicant’s torture claim also under the consideration of whether the applicant is at risk of (a) cruel, inhuman or degrading treatment or punishment (“CIDTP”) prohibited under the Hong Kong Bill of Rights and (b) persecution as defined in Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (collectively “the Proposed Grounds 6 and 7”).

7. I will look at these grounds in detail below. But first, it is necessary to set out the relevant background leading to the Decisions and this judicial review.

B.    THE BACKGROUND

B1.     The applicant and the basis of his CAT claim

8. The applicant is from Kandy, Sri Lanka.  The matters he had stated in his CAT application (both in the relevant application questionnaire and the answers he gave in the interview) could be summarised as follows.

9. In 2003 or 2004, the applicant became friendly with M, who was then a manager of the National Saving Bank (“NSB”) in the applicant’s town.

10. SU is a Sri Lankan living in England.  He wanted to arrange prospective Sri Lankan students to study in schools in England.  SU would be able to make money as a middleman if he could successfully help and arrange these prospective students to study in those schools.

11. SU therefore wanted to get information of bank customers in Sri Lanka who would be in a position to act as guarantors for Sri Lankan students applying to study in England.  This was necessary to fulfil the immigration requirements in England for issuing student visas to these potential students.

12. As a result, in around December 2006, the applicant’s friend, P, asked him to introduce SU to M.

13. The applicant did so and introduced M to SU in January 2007.

14. The applicant was later told that M had provided SU some bank documents as requested by SU.  Apparently SU paid M some 60 lakhs rupees for that purpose.

15. SU later arranged those purported bank documents to be approved by the UK Embassy in Sri Lanka to enable prospective students with sufficient funds to go to study in England.

16. However, SU later told the applicant that the Sri Lanka UK Embassy confirmed that the bank documents were forged.  He therefore could not arrange those students to study in the UK.

17. At the same time, the applicant also heard from a staff of NSB that M had already left Sri Lanka and settled in Australia.

18. SU told the applicant that he had lost 60 lakhs rupees due to the forged documents, and he accused that the applicant and M cheated him.  He therefore demanded the applicant to pay him 20 lakhs rupees as compensation within a month.

19. The applicant told SU he was unable to pay.  He later learnt from P that SU had told R about the incident and that SU had a close relationship with R and his family.

20. R was then a member of the ruling party (People’s Alliance Party) and the parliament.  R had connection with the local Gampaha police and was a rich politician in Gampaha District.  P also told the applicant that R had connection with an underworld gang controlled by SA who was also P’s friend.

21. SA’s gang was based in Gampaha District and engaged in subduing political opponents and carrying out activities favourable and beneficial to R.

22. A few days after SU demanded money from the applicant, SA and some gangsters armed with pistols went to his home and threatened him if he refused to pay.  SA and SU had also threatened him many times by phone.

23. He reported the incident to Gampaha police.  He did not make a direct complaint against SA but only made a complaint for further reference.

24. However, the police told SA about his complaint, and R learnt about it from SA.

25. SU later told the applicant that the problem could not be resolved by reporting to police or leaving his home.  He needed to pay.

26. One week later, SA and his gang also said that the police could not protect the applicant and that they would kill him.

27. The applicant believed that SA and his gang would kill him, so he moved to stay with his friend PR in Wewaldeniya.  He was told by his parents over the phone that on two occasions, SA and his gang went to his home and tried to abduct him.

28. He had also stayed with his aunt (his mother’s elder sister) in Sirmalwatta, Gunnapana and with his uncle (his father’s brother) in Ganemulla.  He did not encounter any problems while staying in those three places before leaving Sri Lanka on 3 September 2007.

29. He stated in his initial CAT Questionnaire that a few days before departing Sri Lanka, he returned to his parents’ home for one night.  During his interview on 14 October 2010, he changed to say that he only stayed for a few hours before he went to the airport.  He did not encounter any problems during the visit.

30. On 3 September 2007, the applicant left Sri Lanka by air and also did not encounter any problems going through the Immigration counter.  He had travelled through Singapore, Malaysia and China first before coming to Hong Kong illegally.  He had stayed in Singapore for one month, before taking a taxi to go to Malaysia as advised by his agent.  He had also stayed in the Mainland for some time, before coming to Hong Kong.

31. In February 2009, he called his mother when he was in Hong Kong, who told him that one month after he had left Sri Lanka, SU went to his home many times alleging that he had cheated them, asked for his whereabouts and threatened to kill him as they did not want the money anymore.

B2.  Immigration and CAT claim history

32. The applicant entered Hong Kong illegally sometime between October and November 2007.  He was arrested by the police on 12 December 2007 for the offence of robbery.

33. On 21 February 2008, he was convicted of the offences of robbery and remaining in Hong Kong without the Director’s authority after having landed unlawfully.  He was sentenced to a total of 44 months imprisonment on 12 March 2008.

34. While on remand in custody, the applicant made a torture claim by a letter dated 12 January 2008, which was received by the Immigration Department (“the Department”).

35. The screening of the applicant’s CAT claim was however temporarily suspended in December 2008 in view of the judgment in FB v Director of Immigration [2009] 2 HKLRD 346, declaring the then screening mechanism unlawful.

36. The screening of the applicant’s CAT claim was later resumed in January 2010 under the revised enhanced two-tier CAT screening mechanism introduced by the Government.

37. The applicant requested and was then provided with legal representation under the Duty Lawyers Scheme (“DLS”) to proceed with his CAT claim under the new system.  He had since then been legally represented[4].

38. The applicant submitted his completed Questionnaire through the DLS.  The applicant also attended the screening interviews together with his DLS assigned lawyer and an interpreter.

39. As mentioned above, in December 2010, by the Director’s Decision, the applicant’s CAT claim was refused.  The Director dismissed the claim on the bases that (a) taking the applicant’s to the highest, the purported attacks and threats mentioned by the applicant did not amount to “torture” as recognised under the CAT, (b) there was no real risk of torture for the applicant to be refouled as he could be relocated safely internally within Sri Lanka, and (c) the Director did not accept the applicant’s credibility and thus his allegations of leaving Sri Lanka for Hong Kong due to his fear of being subject to torture.

40. The applicant then on 17 January 2011 petitioned to the Chief Executive seeking a reconsideration of his CAT claim.  The petition was dealt with by the adjudicator under the Chief Executive’s delegation.

41. On 17 January 2011, the applicant was informed that the adjudicator decided not to conduct an oral hearing and that the adjudicator would consider any further submissions received by 1 February 2011 before making a decision on the petition.

42. The applicant through DLS by a letter dated 27 January 2011 asked the adjudicator to reconsider conducting an oral hearing and, if failing so, also sought an extension of time to submit further submissions.

43. On 28 January 2011, the applicant was informed of the adjudicator’s view that the petition could be decided fairly on papers and that the applicant must provide justification for the application for extension of time.

44. Eventually, the adjudicator granted the extension for the applicant to submit further written submissions by 9 February 2011.  The applicant later did so through the DLS.

45. After that, there was one more round of written submissions made respectively by the Director and later the applicant.

46. On 9 March 2011, by the Adjudicator’s Decision, the adjudicator rejected the petition.  The adjudicator rejected the petition principally on the bases that (a) he did not accept that the applicant’s claim was a genuine CAT claim, (b) the applicant had not been “tortured” in the sense as understood under the CAT, (c) the claim in any event did not fall within the meaning of torture under the CAT as it lacked the necessary “official capacity” involvement, and (d) there was no real risk of torture if the applicant was returned to Sri Lanka as the matters stood by then.

47. The applicant applied for leave to judicial review the two Decisions on 18 May 2012.  As mentioned above, leave was later granted on papers.

C.    THIS JUDICIAL REVIEW

48. I would first deal with the application to include the new proposed grounds by amending the Form 86.

49. It is common ground that the court should only allow the amendments if they are reasonably arguable with a realistic prospect of success.  In this respect, it is also noted that the applicant also sought leave to amend to join the Chief Executive, Mr Wesley Wong (the adjudicator) and the Secretary for Security respectively as the 2^nd to 4^th respondents[5].

C1.  The Proposed Systemic Challenge Ground

50. This can be dealt with very briefly.

51. As indicated by Mr Dykes, this ground identically mirrors the systemic challenge grounds raised in another case, ST v Betty Kwan [2013] 3 HKC 97, and he would also only rely on all the submissions that had already been made to this court in that case in support of this ground.

52. The systemic challenge raised in ST was already rejected by this court before this hearing.  Leading counsel submits that he would not make any further submissions on this ground in light of the court’s decision in ST.  The ground is sought to be included simply to preserve the applicant’s right to raise it on appeal if this judicial review is dismissed.  It is also pertinent to note that most recently, that part of the judgment in ST in rejecting the systemic challenge was upheld by the Court of Appeal[6].

53. In the premises, I do not think this ground is reasonably arguable.  I therefore would refuse to grant leave to amend the Form 86 to include this ground or to join the Chief Executive and the Secretary as respondents for that purpose.

C2.  The Proposed Grounds 6 and 7

54. These proposed grounds are also not reasonably arguable.  First, there was never any decision to refuse to screen the applicant’s claim based on CIDTP and persecution grounds.  Second, it is difficult to see how these grounds would by themselves impeach on the refusal of the CAT claim itself.  Thirdly, since the handing down of the judgments by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 and C v Director of Immigration [2013] 4 HKC 563, the Government had indicated that it would introduce a new screening system for these claims[7]. The applicant is free to submit his claims under these grounds for fresh screening.  For these reasons, the proposed challenges of the Decisions based on the failure to consider the CIDTP and persecution claims are in my view clearly premature and unarguable[8]. I would therefore also refuse to grant leave to amend the Form 86 to include these two grounds.

55. This leaves me now to deal with Grounds 1, 3 and 4 as pursued by Mr Dykes.

56. In the way as the arguments are raised in relation to these grounds, they are related principally to the Adjudicator’s Decision.  It would therefore be convenient to first set out the four issues that the adjudicator had identified and considered for the purposes of the petition.  These four issues are[9]:

(1)   Was the applicant’s claim a genuine torture claim (“the genuine claim issue”);

(2)   Had the applicant ever been tortured (“the torture-suffering issue”);

(3)   Even if the applicant had been tortured, was that inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (“the official capacity issue”); and

(4)   Was there any real risk of torture on the applicant’s return to Sri Lanka (“the future risk of torture issue”).

57. As will be seen below, each of Grounds 1, 3 and 4 raised by the applicant relates to the adjudicator’s conclusion in one or some of these issues.

C3.     Ground 1 – procedural unfairness for lack of an oral hearing

58. This ground is targeted only at the Adjudicator’s Decision[10].

59. Under this ground, Mr Dykes’ challenges are mainly focused on certain parts of the Adjudicator’s Decision which he says clearly concern with the applicant’s credibility or the veracity of his evidence.

60. The first attack relates to those parts of the Adjudicator’s Decision concerning the genuine claim issue as follows:

“The Issues

8. I have carefully considered all the documents submitted including the submissions submitted by the petitioner’s solicitors. Apart from the submission of his solicitors, those documents only showed that fighting, shooting and violence were prevalent but those incidents were created by the underworld and has nothing to do with the government or public officials.

9. The only issues, I have to consider are:-

(a) was this a genuine torture claim;

(b) has he ever been tortured;

(c) even if he had been tortured was that inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity; and

(d) is there any real risk of torture on his return.

Was this a genuine torture claim

10. I have doubts as to whether the Petitioner genuinely required protection under the torture claim for the following reasons:-

(a) At A73 of the interview on 9 June 2010, he said he did not know whether other countries have human rights. One of his friends in Hong Kong told him to come to Hong Kong because he could get human right. If that was the case why did he not come to Hong Kong direct. The only reason I can think of is that he sneaked into Hong Kong to avoid being detected.

(b) If he were in urgent need of human rights protection as he said why did he stay in China for one month before sneaking into Hong Kong.

(c) Once he landed illegally in Hong Kong why did he not surrender to police and ask for protection right away.

(d) He sneaked into Hong Kong in November 2007. He was arrested by police on 12 December 2007. It was only after his arrest that he lodged this torture claim. Again it reflects on his sincerity, if any, in making this torture claim.

(e) On 21 February 2008, he was convicted of robbery and illegal remaining in Hong Kong. This meant that he had committed robbery after he landed but before he was arrested. Was he more interested in committing crimes in Hong Kong than seeking human rights protection?” (emphasis added)

61. Under this part of the decision, the Adjudicator in essence doubted the genuineness of the applicant’s CAT claim by raising a number of questionable features of his allegations.  For examples, as pointed out by Mr Dykes, the adjudicator questioned, if the applicant were genuinely requiring urgent human rights protection as he said:

(1)   why he did not come to Hong Kong directly but had to go through Singapore and Malaysia first (see paragraph 10(a) of the Adjudicator’s Decision);

(2)   why he had to stay in the Mainland first before sneaking into Hong Kong if he were in urgent need of human rights protection (see paragraph 10(b));

(3)   why he did not surrender himself to the police after entering into Hong Kong illegally but only lodged the CAT claim after being arrested for robbery.  As such, was he not more interested in committing crimes than seeking human rights protection (see paragraphs 10(c) to (e)).

62. I agree with Mr Dykes that these amount to the Adjudicator doubting the credibility of the applicant’s evidence and his case. In the premises, he should have given the applicant an opportunity to deal with this orally at a hearing.  This is particularly so as when he informed the applicant that he was going to deal with the petition on papers and asked the applicant to put in further written submissions, the adjudicator had not pointed out these aspects of the applicant’s evidence which he found questionable relating to the genuineness of his claim, so that the applicant could deal with them specifically in his further written submissions.

63. It is also pertinent to note that the applicant had not been asked of these questions by the immigration officer at the first-tier screening during the interview session.  The Director also has not refused the CAT claim on these bases.  It therefore cannot be safely assumed or expected that the applicant could foresee and address them in his petition, even though he was legally represented.  Thus, when the adjudicator found troubled by these aspects of the applicant’s case or evidence, he should have either held an oral hearing to enable the applicant to deal with these concerns, or at the least asked for further written submissions to address these concerns (and in that case, the adjudicator should identify these specific concerns to enable the applicant to address them).  As pointed out by Cheung CHJC in ST, at paragraph 40 as follows:

“Secondly, an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.”

64. In the premises, applying the necessary high standards of fairness in dealing with CAT claims, I agree that the failure by the adjudicator to afford an oral hearing to deal with the adjudicator’s doubts on the applicant’s evidence before he concluded that the applicant’s torture claim was not a genuine one amounted to procedural unfairness.

65. Second, Mr Dykes also submits that the lack of an oral hearing in relation to the adjudicator’s determination of the future risk of torture issue also amounted to procedural unfairness.  The adjudicator dealt with this issue at paragraphs 21 to 22 of the Adjudicator’s Decision in the following manner:

“Real risk of torture on his return

20. …

21. Before he left for Hong Kong he had stayed with his relatives and friend in three different places and had not encountered any problem. Should he return to Sri Lanka as long as he lived away from his home town, he would be safe.

22.   According to the available country information, R passed away on 31 May 2008.  So even if according to the interpretation of Article 1 by the petitioner’s solicitors that a ‘de facto public official’ is sufficient for the purpose of Article 1 that de facto public official is now gone.”

66. The adjudicator therefore concluded on two bases that the applicant would not be at a real risk of torture if he was returned to Sri Lanka.

67. First, the adjudicator was of the view that the applicant should be safe if he was returned to Sri Lanka “as long as he lived away from his home town” (see paragraph 21 of Adjudicator’s Decision).  The adjudicator therefore relied on the concept of “internal relocation” (or “internal flight alternative”), premised on the applicant’s own evidence that he had been staying in his friend’s and some of his relatives’ places and had encountered no problems during those periods[11].

68. At this stage, it is worth to remind ourselves what is said by Cheung CJHC in TK v Jenkins [2013] 1 HKC 526 (CA) at paragraph 37 in relation to the decision-maker’s duty (viewed under the high standards of fairness) to raise the questions of internal relocation clearly with a CAT claimant:

“37. In the local context, it is quite unnecessary to debate whether the suggested evidential burden exists as such. Given the high standards of fairness required of the screening process, it must be incumbent, in most if not all cases, upon the Director to clearly raise the issue of internal relocation, identify specifically or generally (as fairness and circumstances may require) the place(s) that could provide a safe haven to the torture claimant if returned to his country, make known or supply to the torture claimant the materials that he intends to rely on in relation to this issue, offer to the torture claimant whatever assistance in terms of gathering relevant information and materials that it is fair and right for the Director (as opposed to the torture claimant and his legal representatives) to seek and obtain, and to afford the torture claimant a proper opportunity to deal with the issue so raised. Whether one calls that an evidential burden is more a matter of semantics than substance.”

69. In the present case, suffice to say that when the applicant was asked of the facts by the immigration officer at the interview that he encountered no problems while staying in these places, the point or context of “internal relocation” had not been formally and squarely raised with the applicant[12]. The applicant was not asked of these questions with any references to the issue of internal relocation.  For example, he was not asked in that context whether he would then be able to avoid the threats to be made to him or harm threatened to be inflicted on him by SU or SA if he was to return to Sri Lanka by staying away from his hometown, and if not, why so.  Given this, when the adjudicator had also failed to ask the applicant questions to squarely address this issue so as to enable him to deal with them in that context, it amounted to procedural unfairness for the adjudicator to reach the conclusion that the applicant would be safe to be relocated internally.

70. Mr Chow SC (together with Ms Grace Chow) for the Director however says even if the question of internal relocation had not been squarely and clearly raised by the Director with the applicant at the first‑tier, by the time when it came to the petition, the applicant and his lawyer were clearly aware of this issue, as this was one of the bases upon which the Director refused the CAT claim.  As a matter of fact, the applicant’s lawyer had even set out his contentions on this point at page 6 of the written submissions[13] in support of the petition as follows:

“Pages 7 and 8

That because he was not attacked whilst hiding in a friend’s home, his mother’s elder’s sister’s home and his father’s brother’s home for the 2 or 3 months before he fled from Sri Lanka he could internally relocate.  This ignores the fact that his mother was attacked in this period and in support of this contention the decision maker cites a Report on Human Rights Practices in Pakistan (emphasis added).  What conditions in Pakistan have to do with conditions in Sri Lanka is not explained.  This error by itself is enough for the decision not to stand.”

71. The Director also responded to these contentions in her reply written submissions at paragraphs 18-19[14].

72. Mr Chow therefore says there is no doubt that, by the time when it came to the dealing of the petition, the issue of internal relocation had been clearly and squarely raised with the applicant, and he knew about it.  The adjudicator was entitled to deal with this issue based on the written submissions without calling for an oral hearing.

73. With respect to Mr Chow, I do not agree.

74. Internal relocation is clearly a very important issue relevant to the applicant’s CAT claim.  In the present case, I accept Mr Dykes’ submissions that this issue was only clearly raised with the applicant the first time after the Director’s Decision.  In these circumstances, applying the high standards of fairness, it is unfair to the applicant that he was only given the opportunity to address this question by way of written submissions based on the Director’s Decision.  This is particularly so, as firstly his CAT claim should be considered afresh by the adjudicator, and secondly he could not have been expected to foresee all the questions or concerns that the adjudicator might have in mind.  This is further underlined by fact that oral submissions generally provide greater flexibility to an applicant than written submissions to enable him to properly deal with the questions or concerns a decision‑maker may have in his mind.

75. This latter point on flexibility in the present case is well illustrated by Mr Chow’s own submissions.  In response to the applicant’s reliance in the written contentions made to the adjudicator (as quoted above) on the fact that his mother was still being attacked during the time when he was hiding in his relatives’ places, Mr Chow submits that this fact could not provide a justified rebuttal of the internal relocation point as the applicant’s mother was still living in the applicant’s home town at that time.  However, this precisely shows that was unfair not to give the applicant an oral hearing to deal with these types of questions.  If the applicant were asked of this aspect of the submissions at an oral hearing by the adjudicator, he might well have been able to provide an explanation as to why he regarded this fact (ie, the mother was still attacked during this period of time) constituted something against the internal relocation issue.

76. The second basis the adjudicator concluded that the applicant was not subject to any real future risk of torture was that, by then, R had already passed away (see paragraph 22 of the Adjudicator’s Decision).  This therefore, said the adjudicator, negated any risk of torture within the meaning of Article 1 of the CAT, as there could not be any more involvement of a “defacto public official”.

77. Insofar as the effect of the passing away of R in negating any risk of torture by any public official is concerned, this matter had not been put to the applicant for him to respond to.  The failure to ask the applicant to respond to this fact must also be looked at:

(1)   In the context that the applicant had also not been asked at the first-tier of the screening about the fact that R had passed away on 31 May 2008 and the effect of this fact on his allegation of the risk of torture if returned to Sri Lanka, and

(2)   In light of the applicant’s evidence that[15]:

(a)   SU had a close relationship also with R’s family.

(b)   in 2009 (ie, after R’s death), his mother still told him over the phone that SU and his gang were still looking for him and threatened to kill him.

(c)    in 2010, his mother told him that political thugs had become more powerful in the Gampaha District as the younger brother of the President of Sri Lanka had won the majority of votes in Gampaha District in the recent election.

78. Given the above context and evidence, and applying the high standards of fairness, the applicant should have at least been provided with an opportunity (preferably by way of an oral hearing, or at the least he should be asked to address these specified aspects of the matter in his further written submissions) to address (a) the fact that by now R had passed away, and (b) why in those circumstances, he believed that he would still be at the risk of being subject to torture if he was returned to Sri Lanka.

79. The failure to provide the applicant a proper opportunity to deal with these matters therefore also amounted to procedural unfairness for the adjudicator to reach the conclusion that the applicant had no real risk of torture on his return to Sri Lanka after the death of R.

80. Mr Chow however contends that even if these parts of the Adjudicator’s Decision were tainted with procedural unfairness for the lack of an oral hearing, the decision should not be quashed as the adjudicator did go on to refuse the petition on the ground that the claim taken to the highest did not fall within the meaning of torture under the CAT, as it lacked the necessary element of official capacity.  This ground (Mr Chow says) does not relate to any findings based on the applicant’s credibility.

81. This requires me to look at Ground 4 of the judicial review.

C4.  Ground 4 – error of law on interpreting the “official capacity” element

82. The meaning of “torture” under the CAT is defined at Article 1 as follows:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (emphasis added)

83. The definition thus requires, among others, that the purported torture act has to be “inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity”.  This requirement is sometimes referred to as the “official capacity” element in constituting the types of “torture” as recognised under the CAT.

84. The learned adjudicator concluded that the applicant’s claim lacked the necessary “official capacity” element and thus the claim should also be rejected on this basis.  He explained this conclusion at paragraphs 15 to 18 of the Adjudicator’s Decision as follows:

“Had public officials been involved?

[R]

15. (a) I noted the submission concerning the influence of [R] and members of his family. However, in respect of the present Petition, [R] did not act in his official capacity. He only associated himself with the underworld, ie [SA’s] gang. Neither had any of his influential members of family been involved.

(b) I am grateful for the Petitioner’s solicitor to annex a copy of [name of report] dated [date] under the heading SPOTLIGHT MURDER. This report exposed the character of [R] who had been involved and arrested for the murder of [LR]. This shows that [R] was not above the law.

Interpretation of Article 1

16. Solicitors for the Petitioner submitted that-

‘This with respect is a misconstruction of Article 1. It is enough if [R] is a public official. That he did not ‘engage an underworld gang to demand money’ purportedly on behalf of the Sri Lankan government is neither here nor there. The phrase ‘public official or person acting in an official capacity’ should be construed as public official or de facto public official. If you accept that [R] is a public official and he was involved in engaging the underworld gang this is sufficient.

It is not necessary to show he was acting, or purporting to act within the bounds of the authority delegated to him by the government. This is a fundamental error in interpreting Article 3.’

17. With utmost respect to his solicitors what they submitted was a ‘misconstruction’ of Article 1. The crux of Article 1 is that ‘the pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. We have to adopt the golden rule in the interpretation of a statute. Grammatically it should be interpreted as either a public official acting in an official capacity or other person acting in an official capacity. It is grossly wrong to say that ‘it is not necessary to show that he was acting or purporting to act within the bounds of the authority delegated to him by the government’.

Was [R] involved?

18. (a) The Petitioner said the [R] was a famous politician and had instigated the alleged threats imposed by [SA], an underworld gang’s leader. He had never met [R] and he only learnt this from [P]. This was hearsay and there is no evidence to support his allegation.

(b) Even if [R] was involved as stated above there is nothing to suggest that he did it in his capacity as a member of parliament or in any other official capacity.” (emphasis added)

85. Thus, the principal reasons for the adjudicator to conclude that there was no “official capacity” element in the claim are:

(1)   As a matter of interpretation of Article 1, this element referred to the requirement that there was either “a public official acting in an official capacity or other person acting in an official capacity” in inflicting or instigating the purported torture acts (paragraph 17);

(2)   He did not accept the allegation that R had instigated the alleged death threats against the applicant through SA, as this was only hearsay and not supported by evidence (paragraph 18(a));

(3)   In any event, there was nothing to suggest that R did it in his capacity as a member of parliament or in any other official capacity (paragraph 18(b));

(4)   The lack of public official involvement was supported by the fact that the applicant was not stopped at the airport when going through immigration leaving Sri Lanka (paragraph 19).

86. I agree with Mr Dykes that, in interpreting the meaning of the “official capacity” element under Article 1 of CAT, the adjudicator was effectively saying that the torture act has to be inflicted by the public officer in his official capacity or by another person also acting in an official capacity.  This is underlined by his reason at paragraph 18(b) that even if R had asked SA to exert the alleged threats, the requirement was still not satisfied as R was not doing so in his official capacity as a parliamentary member or in any other “official capacity”.

87. This interpretation is incorrect as a matter of law.  As submitted by Mr Dykes, it is well established that the “official capacity” limb for torture under Art 1 of the CAT is constituted where the person in question is imbued with State authority.  It is sufficient if the act is done under the colour of state authority or in the ostensible exercise of the public authority: Jones v Ministry of Interior of Saudi Arabia [2007] 1 AC 270 (HL) at 298H-306D, especially at 301B-F, per Lord Bingham; and Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet (No 3) [2000] 1 AC 147 (HL) at 201C-D and 241H.

88. Mr Chow for the Director does not seek to support a proposition that the “official capacity” element requires that the purported torture has to be inflicted by the public officer or another person acting in an official capacity in instigating the alleged torture acts.  Leading counsel accepts that the test is satisfied if the person instigating the purported torture act is either acting in an official capacity or purported to act in an official capacity.

89. However, Mr Chow says that adjudicator’s interpretation in fact meant that.  In particular, Mr Chow emphasises that the adjudicator’s stated interpretation must be understood in proper context.  He was then seeking to reject the applicant’s lawyer’s submissions that, under the question of official capacity, it was not necessary to show that the “[the public official] was acting, or purporting to act within the bounds of the authority delegated to him by the government” (emphasis added).  Once looked at in that context, it is clear (Mr Chow submits) that the adjudicator in setting out his interpretation in the way he did was only trying to distinguish between public act (whether actual or purported) on the one hand, which would satisfy the test, and purely private act on the other, which would not.

90. With respect, I am unable to accept Mr Chow’s contention for the reasons I have stated at paragraph 86 above.  I would also add that, even understood in the context of seeking to reject the applicant’s written submissions, if the adjudicator did intend to include in his interpretation the category of ostensible exercise of public authority (in addition to the case of acting actually in an official capacity), he would and should have made it clear.

91. I therefore accept that the adjudicator has misdirected himself in law in interpreting the meaning of the “official capacity” element in this part of the conclusion.

92. Moreover, as quoted above, the adjudicator also did not accept the allegation that R had instigated the alleged threats made by SA on the basis that it was only hearsay and not supported by evidence.  If he was in effect saying that he rejected this evidence, this conclusion is also tainted with procedural unfairness as the applicant had not been given any proper opportunity to deal with this challenge of his evidence.  This is particularly so as it is also part of the applicant’s evidence (which had not been rejected by the adjudicator save as his general conclusion that the CAT claim was not a genuine one) that (a) SA’s gang was based in Gampaha District and engaged in subduing political opponents and carrying out activities favourable and beneficial to R, (b) after he had reported the matter to the local police, R learnt about this, and SU then later told him that it would be no use for him to do so (see paragraphs 20‑25 above).  This part of the adjudicator’s conclusion therefore also could not stand.

93. Finally, Mr Chow again says even if there was an error of law as concluded above, this also should not lead to the quashing of the decision.  This is so as the adjudicator further went on to rule at that in any event, as R had by that time passed away, the de facto public official was now gone.  Thus, there was no longer any risk of torture by any public official (whether de jure or de facto) and the petition would necessarily be dismissed on that basis.  For the reasons I have set out at paragraphs 76-79 above, I would reject Mr Chow’s submissions.

94. For these reasons, these parts of the Adjudicator’s Decision are also tainted with an error of law and procedural unfairness and should be quashed.

C5.  Ground 3 – wrongfully treating the petition as an appeal

95. Under this ground, the applicant says the adjudicator had treated the petition as an appeal from the Director’s Decision instead of a de novo hearing of his CAT claim.  This ground of judicial review is directed at paragraphs 3-4 of the Adjudicator’s Decision where the adjudicator said:

“3. On 23 December 2010, the Director of Immigration by a Notice of Determination turned down his torture claim. He now appeals that decision by way of petition to the Chief Executive of the HKSAR.

The Law

4. In this appeal, the Petitioner needs to establish that his removal to Sri Lanka would breach Article 3 of CAT.” (emphasis added)

96. Mr Dykes submits that this is clearly wrong as a matter of law as it is trite that adjudicators should treat the petition as a fresh hearing of a petitioner’s CAT claim[16].

97. The distinction is important (says Mr Dykes) as:

(a)   In a fresh hearing, the adjudicator is required to consider all the materials afresh and may freely disregard any findings made by the Director at the first-tier of the screening.  The claimant is therefore in essence granted a fresh opportunity to have his claim considered on merits.

(b)   However, an appeal requires the claimant to demonstrate how the Director erred in refusing his claim and therefore imposes a higher burden on the applicant or at least a narrower scope of review of the issues.

98. I do not think Mr Chow disputes the proposition that the petition should not be treated as an appeal from the Director’s Decision and the adjudicator should dispose of it as a fresh reconsideration of the applicant’s CAT claim.  However, at the same time, Mr Chow rightly emphasises that, in doing so, the adjudicator is entitled to look at all the materials and evidence already adduced at the first-tier of the screening, as the petition is part and parcel of the overall administrative process in the determination of the CAT claim[17]. Thus, it is not necessarily correct to describe the second-tier process a “hearing de novo”.

99. What Mr Chow really contends is that, notwithstanding the use of the term “appeal” in the Adjudicator’s Decision as quoted above, in substance and in effect, the adjudicator dealt with the petition as a fresh consideration of the applicant’s CAT claim.  His reasonings set out in the decision show that he considered the CAT claim under each issue as identified afresh without treating it in a way of requiring the applicant to demonstrate that the Director was wrong in his decision.

100. I agree with Mr Chow.  Reading the Adjudicator’s Decision as a whole, and in particular in the way he dealt with the issues raised, it is clear to me that he had treated the petition as a fresh reconsideration of the CAT claim.  He looked at each of those issues by reference to the evidence he considered relevant and decided whether the claim was established on merits.  He had not used any part of the Director’s Decision as the basis of his determination or treated that the applicant had to demonstrate that the Director’s Decision was wrong before he could succeed in the petition.  It is unfortunate for an experienced adjudicator to have used the word “appeal” in describing the petition at the beginning of his decision.  However, he had in effect treated it not as an appeal but a fresh reconsideration of the merits of the CAT claim.

101. I therefore reject this ground of judicial review.

C6.  The torture-suffering issue

102. Notwithstanding my acceptance of Grounds 1 and 4 above, it is still necessary for me to deal with the adjudicator’s conclusion under the torture-suffering issue, as Mr Chow submits that if this part of the decision cannot be faulted under any basis of public law, the Adjudicator’s Decision still should not be quashed as the petition had to be dismissed.

103. The adjudicator dealt with this issue at paragraphs 11-14 of the Adjudicator’s Decision as follows:

“11. He had never received any real harm while in Sri Lanka. [SA] and his gang went to his house with pistols only to warn him to return money which [M] took. They had not inflicted any harm on him with their pistols.

12. Apart from that [SA] and [SU] only threatened him over the phone. Had they really wanted to hurt him, it would be easy for them to hurt him bearing in mind that according to him [SA’s] gang was so powerful in Gampaha District.

13. Even assuming that the threat is ‘self evidently severe suffering’ which I do not accept, this threat did not come within the ambit of Article 1 of CAT.

14. By reasons aforesaid he had not been tortured.”

104. What the adjudicator said was that as the applicant had not been subjected to or been inflicted with any actual physical harm, the claim did not come with the meaning of torture under Article 1 of the CAT.

105. Mr Dykes does not dispute that the evidence does not show that the applicant had suffered any actual physical harm before he left Sri Lanka.  He however says that factor alone could not be a sufficient reason to find that the applicant would not be subject to a real risk of torture (including actual physical torture) if he was returned to Sri Lanka, in light of all the threats that had been made to him and his mother.  Leading counsel therefore says the adjudicator’s conclusion under this issue alone would not affect the other grounds of judicial review, if established and the decision should still be quashed.

106. I agree with Mr Dykes.  The principal task of a decision‑maker in screening a CAT claim is to assess whether the applicant would be at a foreseeable, real and personal risk of being subject to torture (as understood under the CAT) in Sri Lanka if he is returned there, and the risk needs not be highly probably although it must be personal and present.  Given my acceptance of Grounds 1 and 4 above, which impact on the adjudicator’s conclusion on this risk assessment exercise, his conclusion under this issue alone would not have rendered that assessment a foregone conclusion.  In this respect, it is also important to note that the Article 1 definition of torture includes not only severe actual physical harm but also severe mental suffering.  The adjudicator must consider this aspect of the definition as well in assessing the risk.

D.  CONCLUSION

107. For the reasons I have set out in sections C3, C4 and C6 above, the applicant is successful under Grounds 1 and 4.  I accept that the Adjudicator’s Decision in rejecting the petition is tainted with procedural unfairness and an error of law.  It should therefore be quashed and be remitted back to the now Torture Claims Appeal Board (with a different adjudicator) to reconsider the petition.

108. Further, to put things in proper order, I would grant leave to the applicant to amend the Form 86 and the Origination Summons to add the adjudicator as the 2^nd respondent in this application.

109. Further, as the applicant is only successful under Grounds 1 and 4, which are directed at the Adjudicator’s Decision only as set out in the Form 86, he has failed to establish any successful challenge to the Director’s Decision, which therefore should not be quashed.  In any event, the applicant has not raised any grounds at all to challenge the Director’s conclusion on not accepting the applicant’s credibility of his case on threats and torture, and on this basis alone, the Director’s Decision also should not be quashed.

110. There are no reasons why costs should not follow the event.  Since the Director also opposes the challenge against the Adjudicator’s Decision, which she fails, I therefore order (on a nisi basis) that costs of this application be to the applicant to be taxed if not agreed, with certificate two counsel.  The applicant’s own costs should also be taxed in accordance with legal aid regulations.  The order shall become absolute 21 days from today unless any of the parties applies to vary it by summons.

111. Lastly, I thank counsel for their helpful assistance.

[1]   The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

[2]   See paragraph 3 of the applicant’s skeleton pursuing only these grounds in the Form 86.

[3]   In light of the Court of Appeal’s judgment in Re RS (Unreported, CACV 206/2012, 20 August 2013), leading counsel has decided not to pursue Ground 2 as identified in the Form 86 where the applicant says the CAT assessment scheme is fundamentally unfair as it requires the provision of self-incriminatory answers without supplying effective protection against the use of such materials in subsequent criminal proceedings (see paragraph 41-51 of Form 86).  Leading Counsel is also not pursuing Ground 5 challenging the Internal Flight Alternative in the Adjudicator’s Decision in the way as mounted in the Form 86.  However, he maintains (as explained later in this judgment) his attack of the internal flight alternative conclusion under Ground 1.

[4]   The DLS had temporarily ceased acting for the applicant between 18 August and 21 September 2010 as they were unable to contact him, after he had been released on recognizance in July.  DLS later resumed acting for him in September.

[5]   See the Amended Summons dated 8 January 2013.

[6]   See ST v Betty Kwan (unreported, CACV 115/2013, Cheung CJHC, Lam VP and Poon J, 26 June 2014), at paragraphs 80-93 per Cheung CJHC.  The Court of Appeal however allowed the appeal on the other grounds that, in the context of circumstances of that case and the reasons for rejecting the petition, the adjudicator’s failure to hold an oral hearing in disposing of the petition amounted to procedural unfairness.

[7]   As a matter of fact, the new Unified Screening Mechanism has commenced its operation since March 2014.

[8]   See also Re RI (Unreported, HCMP 3295/2013, 25 March 2014, Lam VP, Barma JA and Au J) at paragraphs 4-12 per Lam VP, where the Court of Appeal refused leave for the applicant in that case to amend the Form 86 to include similar grounds as the Proposed Grounds 6 and 7 as they were not reasonably arguable.

[9]   See paragraph 9 of the Adjudicator’s Decision.

[10] See the heading of Ground 1 as stated in the Form 86 (page 12).

[11] See paragraphs 27 and 28 above.

[12] See Questions 12-16 and the answers thereto as recorded in the interview record of 9 June 2010.

[13]   See Hearing Bundle, p 886.

[14]   See Hearing Bundle pp 961-962.

[15] See the summary of this part of the applicant’s evidence in the Director’s Decision at pp 4-5.

[16] See Kaur v Director of Immigration (Unreported, CACV 232/2000, reasons for judgment, 14 March 2001, Mayo VP, Wong and Keith JJA) at paragraph 12 (p 7) per Keith JA.

[17]   See RS, supra, at paragraph 22 per Lam JA.