VILLARICO LOUTHERLIZ TALAG v. TORTURE CLAIMS APPEAL BOARD

HCAL 179/2017

[2018] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 179 OF 2017

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REASONS FOR JUDGMENT

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1.  Leave was granted for the applicant to apply for judicial review of the decision of the Deputy Chairperson of the Torture Claims Appeal Board (“TCAB”) / the adjudicator of the Non-refoulement Claims Petition Office (“the adjudicator”) made on 27 January 2017 dismissing and refusing the applicant’s appeal/petition.

Background

2.  The applicant is a Filipino national who first arrived in Hong Kong to work as a foreign domestic helper in October 2009.  She worked here continuously until her last domestic helper Visa application was approved in April 2014 with a one-year limit of stay.  However, her contract was prematurely terminated on 7 June 2014.  She should have left Hong Kong on or before 21 June 2014 but she overstayed.  On 11 September 2014, the applicant surrendered to the Immigration Department and lodged a non-refoulement protection claim on 11 November 2014.

3.  When her claim was dismissed by the Director of Immigration (“the Director”) she lodged an appeal/petition to the TCAB.  An oral hearing was arranged for 28 September 2016.  The applicant was eight and a half months pregnant at the time of the appeal hearing.  She appeared in person for her oral hearing.  She spoke to the adjudicator’s clerk or secretary.  She informed her that she was unwell, was experiencing contractions and had recently been in hospital for five days for pregnancy‑related complications.  She was in pain and wanted to apply for an adjournment of her hearing.  That staff member told her to make the application directly to the adjudicator.

Grounds of review

4.  The entire appeal proceedings took less than seven minutes and what transpired has been reduced to a transcript; the applicant’s solicitors having obtained the audio from the TCAB, Exhibit CI-1.  We are only actually concerned with about one minute of the transcript, Exhibit CI-2.

5.  The applicant was at the late stages of her pregnancy so it would have been visibly obvious to the adjudicator she was pregnant.  The adjudicator is told by the interpreter that the applicant wishes it known that she has stomach pain because she is “overdue to give birth…. This is the second day now to have this stomach pain”.  The adjudicator’s immediate response is “Well, I’m not going to adjourn the hearing.  If she leaves the room then I will go up and write my decision.  I won’t organise another hearing for her.”  He then said to her, “As I said, I already know about the case so there’s no point holding another hearing.”

6.  The adjudicator then told her he will only have a few questions at most five or six, does she want to answer them.  She replies that she prefers not to answer questions and the hearing is adjourned.  The applicant gave birth 30 hours after that.  The adjudicator gave his decision four months later dismissing her appeal and makes no mention of the above conversation.

7.  What is unacceptable is his clear cynicism.  Despite her obvious pregnancy, he undoubtedly assumed that a complaint of pain was an excuse to adjourn the hearing.  He did not stop to consider the complaint may have been genuine.  She at one point can clearly be heard on the audio recording drawing in a deep long breath as if in pain yet if he had any doubts, he still made no enquiry of her situation to ascertain if it is genuine.

8.  He did not try and ascertain whether her complaint was genuine, whether she required an adjournment and whether he should in all fairness consider one necessary.  The fact he did not make one enquiry as to the nature of her pain or whether she was actually due to give birth having been told she was overdue is an unfortunate indication of his cynicism.  The fact he so blatantly pre-empted her request for an adjournment and then dismissed it meant he did not believe her before she had had a chance to be heard.  I am sure of this because his tone of voice makes this conclusive.

9.  There is no doubt an application to adjourn was about to come from the applicant.  The fact the applicant did not pursue it does not mean she did not want to make an application any longer.  I am sure the response from the adjudicator was unexpected; it being so curt and unsympathetic.  Mr McCoy SC, for the applicant, describes the standard of this reply as grotesque for a case with human rights dimensions.  In no uncertain terms she was instantly told if she left the room, the decision would be made and no further hearing arranged.  It was said in a tone described by Mr McCoy as rude and abrasive.  It is therefore not surprising that the applicant said no more. There can be no doubt an application for an adjournment was stopped dead in its tracks by the adjudicator and his response; it was deliberately ignored. The fact the Respondent and the Interested Party do not wish to be heard on these grounds speaks volumes.

10.  This flies in the face of the adjudicator’s duty to conduct this hearing to a high standard of fairness.  In a hearing where an applicant’s fundamental human rights not to be subjected to torture is to be considered, it has been held high standards of fairness must be observed by the decision-maker when making administrative decisions.  This approach applies to the adjudicator here and I quote the then Chief Justice Li in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187:

“Standards of fairness

43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

11.  I agree with Mr McCoy that the tone and approach by the adjudicator did not demonstrate the adjudicator was considering the applicant’s well-being and was not adhering to a high standard of fairness.

12.  It is a ground submitted by Mr McCoy that there has been procedural irregularity.  The adjudicator did not address the question of an adjournment properly.  The test to be applied in considering whether an adjournment should have been granted was whether it was unfair to the applicant; fairness was the criterion.  He relied on the authority of Kelechi Emanuel Nwaigwe v Secretary of State for the Home Department (2014) UKUT 418, paras 7-8.

“If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing… In a nutshell, fairness is the supreme criterion.”

13.  What the adjudicator did not ask her and what he threatened to do without asking her any questions showed such a lack of compassion and fairness that that is enough to show procedural irregularity.  In short, the proper test was not addressed and considered.  This ground has merit.

14.  The only other ground relates to an error of law, a failure to give reasons for refusing an adjournment.  It would appear on the papers, there was no adjournment made, considered and refused.  The adjudicator makes no mention of what transpired in the hearing.  All he said in his decision was that the applicant represented herself at the hearing, had her rights explained to her and she then decided to remain silent and not answer any questions.

15.  The adjudicator makes no mention of the applicant telling him she was basically having labour pains and he telling her that he would not adjourn the hearing.  Yet, there is no question or doubt an application to adjourn was coming from the applicant.  The adjudicator knew this himself by his immediate response; that he would not adjourn this hearing.

16.  Whether it was ignored or whether it was refused, is semantics. Mr McCoy’s submission has merit; when a judicial decision is made, it should most definitely be referred to then reasons for it should be given; that must be right.  There is merit in this ground.

The declaration sought as relief

17.  The interested party, the Director of Immigration adopted a neutral stance in this proceedings.  However, he did submit written submissions addressing the issue of the declaratory relief sought by the applicant in paragraph 1 of the Originating Summons.  The interested party did seek to persuade the court that such a declaration should be refused. The Director remained neutral on all other issues and was excused from the substantive hearing as requested.  The declaration sought is as follows:

“1) a declaration or declarations as follows:

a. A declaration that where the Torture Claims Appeal Board (“TCAB”) or and adjudicator of the Non-refoulement Claims Petition Office has decided to conduct a hearing per S.8 of the Principles, Procedures and Practice Directions of the TCAB, high standards of fairness requires that the appellant is fit and well enough to proceed on the day of the hearing; and

b. That the TCAB adopts suitable practices and procedures to ensure that an applicant is fit and well before proceeding to a full hearing, or elects to adjourn where necessary”

18.  I heard Mr McCoy on the declaration requested and I was not persuaded by him.  The Torture Claims Appeal Board have made it clear by way of an affirmation from Ng Ka Man Carmen, an executor officer of the TCAB dated 10 January 2018 that a committee is in the process of drafting new practice directions for the TCAB; a set of draft directions specifically aimed at Adjournment of Scheduled Hearings due to illness of the Appellant/Petitioner have been considered and discussed in recent meetings in December and January.  It would appear that the issue is being addressed and does not require the courts to consider a declaration.

Conclusion

19.  I agree with Mr McCoy that the tone of the adjudicator and the failure of the adjudicator to acknowledge what the applicant had said and deal with it properly and fairly means the adjudicator did not adhere to a high standard of fairness and there was not only an error of law made but procedural irregularity.  The adjudicator dealt with the applicant’s well‑being in a most perfunctory manner.  I found merit in Mr McCoy’s grounds and quashed the decision of the TCAB.

Order and Costs

20.  I made the following orders on 7 February 2018:

1.  An order of certiorari quashing the decision of the TCAB dated 27 January 2017 refusing the applicant’s appeal/petition against the Director’s decision and I remit the appeal back to the TCAB for reconsideration by another adjudicator.  Given the time lag since the adjournment was refused, the appeal should be reconsidered on an expedited basis.

2.  The cost of this application be borne by the Director of Immigration, the interested party, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with legal aid regulations.