PAV v. WILLIAM LAM, ADJUDICATOR (TORTURE PETITIONS)

HCAL 88/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 88 OF 2013

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J U D G M E N T

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1. This is an application for leave to commence judicial review of the decision of Mr William Lam, an adjudicator of the Petition Team, Security Bureau made on 1 November 2012.

Screening of the CAT claim and the legal representation issue

2. The applicant is from Sri Lanka.  He claimed to be of Tamil ethnicity and had fought for but deserted from the Liberation Tigers of Tamil Eelam (“LTTE”).  He left Sri Lanka on 4 June 2005 before the end of the civil war there. 

3. He applied for refugee status in Hong Kong with the UNHCR on 21 November 2005.  He made a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading or Punishment Treatment with the Director of Immigration (“the director”) on 16 August 2006 (“the CAT claim”).  He advised the director in a letter of the same date that he had been an active member of the LTTE political group for 4 years and also been a fighter.  But he deserted.  The LTTE was very angry and wanted him to return.

4. Since 2008, he had been assisted by Mr Mark Daly of Messrs Barnes and Daly (“B&D”) on a pro bono basis in his application for asylum with the UNHCR.  Mr Daly had also assisted him pro bono or as solicitor assigned by the Director of Legal Aid in other matters.

5. On 1 March 2012, the director advised the applicant by letter served on him personally that the screening of his CAT claim was resumed.

6. On the same day, the applicant applied to the Duty Lawyer Service (“DLS”) for assistance in preparing his claim.  He also gave a letter of the same date to the DLS requesting for assignment of Mr Daly as his lawyer.  He said Mr Daly had been handling his CAT claim since 2006.  The DLS declined his request on 15 March.  The DLS assigned to him a solicitor of 16 years experience, but he declined to attend the first scheduled conference. He again requested for assignment of Mr Daly.  At about the same time, B&D also wrote to the DLS asking for Mr Daly to be assigned as his lawyer.

7. The DLS replied to B&D on 16 March and declined to assign Mr Daly on the ground that Mr Daly had already been assigned with too many cases.  The DLS offered to assign Mr Barnes of B&D for the applicant, but Mr Barnes did not take up the offer.  The DLS then assigned a counsel of 13 years post-call experience for the applicant.

8. On 20 March, B&D wrote to the DLS and requested again for Mr Daly to be assigned for the applicant.  The DLS declined the request again.

9. The DLS then contacted the applicant on 22 March and arranged a conference for him with his assigned counsel on 28 March.

10. On 23 March, B&D wrote to the director advising that the applicant wanted Mr Daly to be his assigned lawyer and Mr Daly was seeking the assignment from the DLS.  B&D asked the director to adjourn the screening of the applicant’s case until the matter of assignment was resolved.  B&D also advised the director to communicate with them regarding the applicant’s case and not with the DLS.  This advice to the director was backed by an authorisation and direction signed by the applicant and enclosed in the letter. 

11. The applicant attended the conference with his assigned counsel on 28 March, but again told the DLS that he preferred Mr Daly to be his assigned lawyer.

12. The DLS however asked the applicant to confirm if he wanted to retain his assigned counsel failing which the DLS might consider that he did not want legal representation from the DLS.

13. The applicant wrote to the DLS again on 2 April requesting for assignment of Mr Daly.  The DLS again declined the request on the ground that Mr Daly had been assigned with too many cases.  The applicant later initiated judicial review proceedings against the DLS for its decision not to assign Mr Daly as his lawyer. 

14. The director replied on 8 May to B&D’s letter dated 23 March and required the applicant’s screening questionnaire to be returned on or before 22 May failing which the director would determine the applicant’s case on the basis of available information. 

15. On 15 May, B&D wrote and asked the director for detailed reasons for not acceding to the applicant’s request for adjournment but asked the applicant to return the questionnaire on or before 22 May.

16. The director gave the reasons in a reply dated 13 June and required the questionnaire to be returned on or before 27 June.

17. On 22 June, B&D wrote and asked the director again for adjournment of the applicant’s case pending the resolution of the assignment of lawyer issue.  B&D further advised the director that it was acting for the applicant pro bono on a limited retainer pending the resolution of the assignment of lawyer issue and it was liaising with the Legal Aid Department to challenge the DLS on this issue.

18. The director replied on 2 August and stated that the applicant had been offered free legal representation and his issue with the DLS was only on his choice of lawyer.  The director further said that there was no indication on when the assignment of lawyer issue could be resolved and five months had elapsed since the resumption of screening.  The director thus advised B&D that he would proceed to determine the applicant’s case on the basis of available information.

19. On 10 August, B&D wrote again and advised the director that the applicant was appealing against the DLS decision and liaising with the Legal Aid Department for judicial review of the decision.  They therefore repeated the request for adjournment. 

20. On 17 August, B&D wrote again and advised the director that the Legal Aid Department was awaiting the outcome of a legal aid appeal before deciding the applicant’s application for legal aid to challenge the DLS.  Hence, they asked the director to adjourn the applicant’s case.

21. On 20 August, the director replied that sufficient time and reasonable opportunity had been given to the applicant to complete the questionnaire and declined the request for adjournment.

22. On 27 August, B&D requested for adjournment again.  They further advised the director that the applicant’s claim derived from his previous involvement with the LTTE and he feared that he would be targeted for arrest, detention and torture by the Sri Lankan authorities upon return to Sri Lanka.  B&D further said that he had worked for LTTE in various positions including as a bodyguard for an LTTE political leader and a fighter in the LTTE armed forces.  He had at one point been nominated a captain of an LTTE fighting unit.  He had also suffered injuries that required hospitalisation due to his activities with the LTTE.  B&D also reserved the applicant’s right to be interviewed and to provide further information, submissions and evidence.

23. The director replied on 17 September and refused to adjourn the case.

The director’s determination of the CAT claim

24. The director determined against the CAT claim and the determination was served on the applicant through B&D on 18 August.

25. The determination referred to the applicant’s allegations made in his letter dated 16 August 2006 and by B&D for him in the letter dated 27 August.  The determination then referred to the victory of the Sri Lankan Government over the LTTE on 19 May 2009 and said that any risk of harm from LTTE had dissipated.  It further said that the applicant’s perceived risks from the Sri Lankan authorities upon return was not supported by the objective country of origin information.  The country of origin information (“COI”) possessed by the director also indicted that the Sri Lankan authorities had adopted a lenient approach towards former LTTE members and was helping them to reintegrate into society.

The appeal to the Petition Team

26. The applicant lodged an appeal to the Petition Team of the Security Bureau on 27 September 2012.  The Notice of Appeal was sent under cover of a letter of the same date by B&D.

27. B&D advised the Petition Team in the letter that they were not acting for the applicant in the appeal.  They were acting for him to pursue his claim to be represented by his chosen lawyer in pursuing his CAT claim.  They said that they had acted for him strictly as his solicitors to challenge the non-assignment of Mr Daly and not as his solicitors on his substantive CAT claim.  They further said that he had asked for an adjournment but the director rejected the request.

28. I think this letter is inaccurate on the role of B&D vis-à-vis the applicant’s CAT claim.  On the director’s record, B&D were the solicitors representing the applicant in his CAT claim.  B&D had advised the director on 23 March that they were representing the applicant and the director should communicate with them and not with the DLS on the applicant’s CAT claim.  I would also mention that B&D had in their letter dated 22 June further advised the director that they were acting on a limited pro bono basis for the applicant pending resolution of the assignment issue.

29. B&D continued to say in their letter of 27 September to the Petition Team that the applicant wished to retain Mr Daly to assist him in the appeal and had applied on 24 September to the DLS for the assignment. They therefore asked the Petition Team not to proceed with the appeal and to confirm that no further steps would be taken.  The 2nd last paragraph of the letter said:

“At this stage, Mr [PAV] has not been advised on the merits of the Petition. Nor is he represented for the purposes of the Petition. As such, it would not be appropriate for an Adjudicator to proceed to determine the Petition or indeed take any steps pending (a) the decision of the DLS on whether Mr Daly is to be assigned and (b) assuming that decision is to reject the request, pending a subsequent challenge to that refusal, for the same reasons as argued in respect of the non-assignment at the first instance screening.”

30. The Notice of Appeal contained no ground of appeal and it only referred to B&D’s letter of 27 September.

31. The Petition Team did not give the confirmation as sought by B&D on behalf of the applicant.

32. On 5 October, B&D wrote to the petition Team again and advised that two legal aid appeals involving similar issue as the applicant’s on the assignment of lawyer had been allowed and B&D expected that there would be a legal aid certificate for the applicant to commence judicial review against the DLS on the assignment of lawyer issue and against the director for refusing his CAT claim.

33. On 26 October, B&D wrote to the Petition Team again and said that the applicant had been granted a legal aid certificate to challenge the decision of the DLS on the assignment of lawyer issue.  In addition, the applicant had also lodged an application for legal aid to challenge the director’s determination against his CAT claim.  B&D further said that the applicant did not have the benefit of legal representation at the screening by the director and on appeal to the Petition Team.  They further asserted that if the Petition Team should proceed to determine the appeal, it would only compound the unfairness of the earlier proceedings and result in grave injustice and a waste of public resources.

The decision of the adjudicator against the appeal

34. Mr William Lam, the adjudicator did not respond to these letters and dismissed the appeal on 1 November 2012.

35. Mr Lam said in his decision that despite the applicant’s dispute with the DLS on assignment of lawyer, he could not postpone the process of the appeal.  There had to be finality to the applicant’s CAT claim.  If there should be a change of scenario brought about by the judicial review, then the changed scenario had to be grappled with.

36. Mr Lam then referred to the information given by the applicant to the director and the applicant’s alleged fear of LTTE and the Sri Lankan Government.

37. He referred to the definition of torture in article 1(1) of the convention as follows:

“1. For the purposes of this Convention, the term ‘torture’ means 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.”

38. He then analysed the applicant’s case.  He referred to the need for consent or acquiescence of a public official or other person acting in official capacity to the inflicting of pain or suffering as spelt out in the definition of torture.  He said torture could not be the official stance of the Sri Lankan Government as it was one of the 15 countries that had together formulated the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The manual is commonly known as the Istanbul Protocol.

39. He further said that the Sri Lankan Army had defeated the LTTE in May 2009 and that the Sri Lankan Government in 2012 had no further substantial interest in past LTTE members.  He therefore concluded that the applicant had failed to establish a substantial real or personal risk of torture by the Sri Lankan Government.

40. In support of this conclusion, he also referred to the fact that the applicant was able to leave Sri Lanka through proper immigration channel back in 2005.  Hence, he was not wanted or targeted for torture.

41. Regarding the allegation in B&D’s letter of 27 August that the applicant had suffered injuries in his activities with the LTTE, Mr Lam said that there was no detail or evidence of the injuries.  The injuries were also not said to have been inflicted by the LTTE.  If the injuries were inflicted through fighting against the Sri Lankan Government, then they were not inflicted in the context of torture.  There was no past pain or suffering which could come within the definition of torture.  He therefore dismissed the appeal. 

42. He also made some observations on the applicant’s credibility.  But I think such observations are not necessary as his decision was made without regard to credibility. 

The application for leave to commence judicial review

43. When the applicant lodged his application for leave to commence judicial review, the application was directed to both the director’s determination against his CAT claim and the adjudicator’s dismissal of his appeal.

44. The original grounds of the application also said that the director had failed to investigate the applicant’s rights under article 3 of the Hong Kong Bill of Rights (“HKBOR”) or his status of a refugee within the meaning of article 1(A) of the UN Convention relating to the Status of Refugees (“UNCR”).  Since the government has set up a new system to investigate claims under article 3 of the HKBOR and article 1(A) of UNCR which is open to the applicant, the applicant has withdrawn his application as against the director and these two grounds.  His amended application, which runs to nearly 60 pages, is only against the dismissal of the appeal by the adjudicator.  His grounds of the appeal are as follows:

“(1) Ground 1: The Adjudicator’s Decision is contrary to the requisite high standards of fairness due to (a) his failure to afford an oral hearing or give notice of intention to do so and (b) his failure to stay/adjourn the present proceedings;

(2) Ground 2: The Adjudicator’s Decision is procedurally unfair due to his failure to give reasons as to the matters described in Ground 1 and amounts to an unlawful fetter of his discretion;

(3)  Ground 3:  The Adjudicator’s Decision to dismiss the Applicant’s Petition was unlawful in that he misdirected himself at law concerning the approach to evidence and country guidance, the definition of torture, the application of the test of state actor, and the issues of credibility concerning the Applicant’s and was irrational in the public law sense.”

45. The applicant elaborated on these grounds in the amended notice.  In addition to the elaboration and the written submissions, Mr Dykes, leading counsel for the applicant and Ms Leona Cheung, Senior Government Counsel for the Director of Immigration (“the director”) also made oral submissions at a hearing conducted at the request made in the amended Form 86.

Analyses and decision on grounds 1 and 2

46. For the ground that the adjudicator had failed to afford an oral hearing or gave him notice that the appeal would be determined without an oral hearing, he said he had acted according to legal advice not to present a screening questionnaire or file further information with the director or the adjudicator when the issue of assessment of his chosen lawyer was awaiting adjudication.  The adjudicator should not penalize him for proceeding with the legal advice as the error in the legal advice should not be attributed to him.

47. I cannot see that the adjudicator in processing the appeal had penalized the applicant.  If the applicant thought that the adjudicator, in not giving an oral hearing or notice of intention not to conduct such hearing, was penalizing him, then he is making an unsupported attack. 

48. I think the proper question should be whether the appeal could have been justly determined without an oral hearing.  Subject to this, if the applicant had followed erroneous legal advice and hence failed to present a meritorious appeal but the adjudicator had not erred in his decision, then I cannot grant leave for judicial review of the adjudicator’s decision.

49. The applicant further said in the amended notice that he had been denied of any opportunity to make representations as to why he should be given a further opportunity to at least make written submissions to complement the limited information he placed before the adjudicator.  But he never asked for such opportunity.  He merely asked the Petition Team not to take any step to determine the appeal pending the resolution of his application for assignment of his chosen lawyer for the appeal.  He asked the Petition Team to confirm that no further step would be taken.  But neither the Petition Team nor the adjudicator gave the confirmation.  It was thus obvious to him and B&D that the adjudication of the appeal would proceed without adjournment.  He should also have been aware and B&D would have advised him that that was the last opportunity for him to present to the adjudicator whatever information that he wanted to present but had not yet done so.  If he should have failed to make good use of that opportunity, he cannot now say that he was deprived of it.

50. Mr Dykes for the applicant submitted in para 25 of his submissions that the fair way of dealing with the applicant’s request to adjourn the appeal was to advise the applicant that (i) the applicant had to finalize his legal representation before a certain date; and (ii) if the applicant was unable or unwilling to arrange legal representation before that date, the adjudicator would direct that the petition be listed for an oral hearing.

51. Putting aside the need for oral hearing, I accept that giving an ultimatum for the applicant to make a further presentation of information is one of the ways open to the adjudicator.  To turn a deaf ear to the three letters from B&D dated 27 September, 5 October and 26 October would demonstrate a lack of courtesy.  However, given my observations above on the further opportunity to make written submissions, I do not think B&D or the applicant would need a formal ultimatum before realising that the final opportunity was there and had to be made use of.

52. Mr Dykes in para 24 of his submissions also submitted that it was unfair for the adjudicator not to hold an oral hearing because:

“(1) There were clearly issues of fact and law involved, including: the risk of severe pain or suffering, and state involvement or acquiescence [AB/31/270-271/9-14].

(2) The Applicant was asserting a case of apprehended torture that objectively speaking could have disclosed a viable claim to protection (see the numerous cases concerning the situation of ex-Tamil fighters referred to in the Form 86. AB/6/79/38-39); and

(3)  There was no interview by the first-tier decision maker and therefore no better information about the Applicant’s case.”

53. However, I would refer to the judgment of McWalters J in AM v Director of Immigration & Anor, HCAL 102/2012 dated 20 November 2013 at paras 21 and 22:

“21. One must be careful not to allow the phrase ‘joint endeavour’ to blur the quite separate roles played by the claimant and the Director. Sight must not be lost of the fundamental fact that the claim is that of the claimant and it is he who has ultimate responsibility for it ̶ a responsibility which remains with him throughout the processing of it. That the burden of proof always remains on the person claiming the protection of Article 3 is apparent from the comments of the Chief Judge in T K v Jenkins & Anor [2013] 1 HKC 526 case at paragraphs 30-31:

‘30. … In deciding whether there are ‘substantial grounds for believing’ that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact … The burden lay with applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).’

22.    The Director, on the other hand, has a reactive role. Once he receives the application he will be in a position to assess what further information he will need in order to process it.  The Director’s role is not to assist the claimant in establishing his claim  ̶  that is the role of the claimant’s lawyer.  Rather, the Director’s role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim.  When the time comes for the Director and the Adjudicator to make findings of fact in the course of determining the claim or deciding the petition they apply the civil standard of the balance of probabilities.  (T K v Jenkins & Anor [2013] 1 HKC 526 at paragraph 31)”

54. The information supplied by the applicant in his letter dated 16 August 2006 and B&D’s letter dated 27 August 2013 was not much more than a cry of fear.  That obviously cannot discharge the burden of proof of torture as defined in article 1(1) of the convention.

55. When the blank screening questionnaire was served on him by the director on 1 March, he was also given a Notice to Claimant. The notice explained that the burden of proof was on him to establish his claim.  The director also gave him repeated opportunities to put in his information in full. 

56. When he lodged his appeal with the Petition Team, he had another chance to provide information.  The Notice of Petition reminded him again that it was his responsibility to establish his claim and he should provide all the information, evidence and submissions that he wished the adjudicator to consider.

57. The notice further advised him that only if circumstances warrant would there be an oral hearing to be arranged, otherwise the adjudicator would decide on the petition without further notice.

58. Furthermore, he was represented by B&D throughout.  Although the retainer was for the resolution of the assignment of lawyer issue, I would not imagine that B&D would have written the letters dated 17 September, 5 October and 26 October for him to the Petition Team but not have told him that subject to his judicial review of the assignment of lawyer issue, that was the final opportunity for him to present his full information and that an oral hearing might not be arranged. 

59. In these circumstances, if the applicant can still ignore the advice in the notices and choose not to put in his full case, but to demand an oral hearing for him to verbalize his case or for the adjudicator to extract the case out of him, that would be reversing the burden of proof.

60. For the same reasons, I also do not think the complaint of absence of any notice of no oral hearing has any merit.  The Notice of Appeal had advised him that an oral hearing would be arranged only if the circumstances would warrant.

61. Mr Dykes in oral submissions also added that the mentioning by the applicant that he was a former LTTE member should have caused the adjudicator to undertake an enquiry which would include an oral hearing. He further submitted that even if there should be non-participation of the applicant in the appeal process, that would still not absolve the adjudicator from the obligation to conduct an enquiry.  I disagree with these submissions as they will certainly reverse the burden of proof.  I must make it plain that in the circumstances of this case, if the applicant should choose not to disclose a prima facie case in his notice of appeal, he cannot complain when his appeal should be dismissed without an oral hearing.

62. Mr Dykes also submitted that the fact that the applicant had not presented more information about his case did not detract from the adjudicator’s duty of joint endeavour in the inquiry.  However, I would echo the words of McWalters J in para 22 of AM referred to above. I do not think the joint endeavour would require the adjudicator in these circumstances to assist the applicant to establish his case.

63. Mr Dykes submitted that the adjudicator had adopted a totally passive role in the decision making process.  But I think it was the applicant who had adopted such a role.

64. Mr Dykes also submitted that the adjudicator might need to draw the applicant’s attention to matters that required clarification.  But on the brief information furnished by the applicant which did not even constitute a prima facie case for the adjudicator to work on, I cannot see why the adjudicator should have asked the applicant to provide clarification on anything.

Analyses and decision on ground 3

65. On substantive merits, Mr Dykes submitted that without an oral hearing, the adjudicator had no real basis to find that the applicant could have left Sri Lanka in June 2005 without hassle or problem and that he was far from being wanted and faced no real or personal risk of torture. 

66. However, that is a reading of the adjudicator’s reasons out of context.  The adjudicator firstly said that the torture could not be the official stance of the Sri Lankan Government as it was one of the 15 governments that had together formulated the Istanbul Protocol.  I do not think Mr Dykes can find fault with this statement.  The adjudicator then said that the Sri Lankan Army had defeated the LTTE in May 2009 and the Sri Lankan Government in 2012 had no further substantial interest in past LTTE members. That was the adjudicator’s reaction to the applicant’s case that he had been an active member of LTTE for 4 years and had worked for it in various positions including as a bodyguard for one of its political leaders, as a fighter in its armed forces, at one point nominated a captain of one of its fighting units and had suffered injuries that required hospitalisation due to his activities with it. On the basis of these allegations, the applicant then asserted that he was targeted for arrest, detention and torture by the Sri Lankan Government.  The adjudicator then made his reaction to the assertion.  I cannot say that the adjudicator’s reaction was misplaced.  This reaction had in fact been made by the director in his determination too.  The adjudicator’s reference to the applicant’s leaving Sri Lanka in June 2005 without hassle was not the main reason for his decision.  I would also say that if the applicant’s departure from Sri Lanka in June 2005 was otherwise than hassle free, then he should have revealed all the hassles in his notice of appeal if he had not done so already in the screening questionnaire to the director.

67. Mr Dykes also attacked the adjudicator’s reasons because there was no reference to any COI.  However, the defeat of LTTE by the Sri Lankan Army in May 2009 was a commonly known fact.  Based on such fact, the adjudicator assessed that the risk of arrest, detention and torture of the applicant by the Sri Lankan Government was low in 2012. 

68. The applicant had supplied to the adjudicator only minimal facts which did not disclose a prima facie case and no COI.  In these circumstances, I cannot say that the adjudicator was not entitled to reach the assessment that he made.

69. Mr Dykes also referred to the many reports and COIs on Sri Lanka as detailed in the amended notice of application for leave. Some of the reports were issued after the dismissal of the appeal and could not have been referred to by the applicant to the adjudicator.  However, none of the rest that were available had been referred to the adjudicator and they were only mentioned for the first time in the amended notice filed with the court.

70. Ms Leona Cheung, Senior Government Counsel representing the director also submitted that the pool of COI is a big one comprising materials emanating from different countries like the USA and the UK which contain information and comments for and against Sri Lanka.

71. Ms Cheung also refer to GJ & Ors (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), which is the latest country guidance decision handed down by the Upper Tribunal (Immigration and Asylum Chamber) of the United Kingdom on 5 July 2013.

72. The decision says that the concern of the Sri Lankan Government is not with past membership of or sympathy with LTTE but is on whether a person is a destabilising threat in post-conflict Sri Lanka (para 311).  The Sri Lankan Government is confident that there is a low risk of resurgence of internal armed conflict.  Its concern is with the risk of resurgence from the diaspora.  London, Paris, Toronto and Oslo are the diaspora hotspots (para 303).  Hong Kong is not mentioned to be a hotspot.

73. Finally, Mr Dykes also submitted that the adjudicator had mis-directed himself on the law of state involvement and acquiescence in that he had made no reference to the extended definition of “failure to provide due diligence”.  However, I see no need for the adjudicator to consider this issue as the alleged risks of arrest, detention and torture were by the Sri Lankan Government and not anyone outside that government.

Order

74. For the above reasons, I do not think that there is any arguable case for leave and I dismiss the application.

75. I also make a costs order nisi that there be no order as to costs.