X v. TORTURE CLAIMS APPEAL BOARD

HCAL 143/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 143 OF 2013

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J U D G M E N T

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Introduction

1.  On 3 January 2014, I granted ex parte leave to the applicant to apply for judicial review to challenge the decision of the adjudicator made on the petition of the applicant in respect of the decision of the Director of Immigration (the Director) rejecting his claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention or CAT) that there are substantial grounds for believing that he would be in danger of being subjected to torture if he returned to his country of origin. A claim of this type is usually described as a CAT or torture claim and I will use these descriptions interchangeably throughout this judgment.

Basis for a CAT claim

2.  The obligation under the Convention is that no person should be returned to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The process employed to determine a torture claim would require the claimant to complete a questionnaire and submit it together with any documents or material in support of the claim to the relevant assessment officer for consideration. The assessment officer would obtain relevant information or reference material, and if necessary seek comments from international bodies in relation to the claim.  The assessment officer would conduct an interview with the claimant if necessary and arrange a medical examination if justified. At the end of the process a determination of the claim is made by the assessment officer and a notice of the determination is given to the claimant. It would normally set out in detail the basis of the claim, the immigration history of the claimant and the consideration and determination of the claim.

3.  A CAT claimant whose claim has been refused can petition the Chief Executive (the CE) for reconsideration of the decision which is conducted by an adjudicator under the delegated authority of the CE.

4.  In assessing a CAT claim, the primary consideration is whether it amounts to “torture” as defined under Article 1 of the Convention which is “…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.”  

5.  In establishing a CAT claim, under Article 3 of the Convention, the risk of torture to the claimant if returned to the State concerned must be foreseeable, real and personal and accordingly this will require taking into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The Convention covers situations where the claimant fears torture either by governmental forces in the State concerned or by forces operating with the consent or acquiescence of a public official.

Grounds for judicial review

6.  Whilst the applicant sought to challenge the adjudicator’s decision on various grounds, leave was granted on the sole ground as to whether procedural fairness required in the circumstances of this case an oral hearing for the determination of the petition by the adjudicator.  The adjudicator had decided not to hold an oral hearing and conducted a review of the petition on the papers only.  In the leave judgment in this case on 3 January 2014, I explained that the issue concerning the holding of oral hearings with respect to torture claims had to be considered in light of the principles laid down in the Supreme Court decision in Osborn v The Parole Board [2013] 1 WLR 1020 (Osborn).  This was recently done by the Court of Appeal in ST v Betty Kwan and ors, CACV 115/2013, 26 June 2014, unreported, (ST) which took the opportunity to discuss and distil the general principles on holding an oral hearing with particular reference to CAT claims.  I will address the principles laid down in that decision in my analysis of this case.

7.  The applicant seeks an order of certiorari to quash the adjudicator’s decision and to remit the matter to the Torture Claims (Appeal) Board for a fresh hearing at which the applicant is to be present.  The ground for judicial review is procedural impropriety in the refusal by the adjudicator to hold an oral hearing of the petition.

8.  The applicant framed the ground of review on the basis that the adjudicator failed to meet the high standards of procedural fairness required in that if the adjudicator sought to challenge the applicant’s credibility, an oral hearing was warranted in order to satisfy the obligation of procedural fairness.  More precisely what this ground seeks to question is: Where an adjudicator makes a finding as to the credibility of an applicant, is he under an obligation to conduct an oral hearing as a matter of procedural fairness? The complaint of the applicant is that he was denied an oral hearing which he requested and which was warranted given the need to explain his particular tribal beliefs and customs and the issue as to the truthfulness and credibility of his account about his situation in his home country.  The issue comes down to whether or not the adjudicator was wrong in the circumstances of this case to decide the petition without conducting an oral hearing.

9.  It is argued on behalf of the applicant that the adjudicator in reaching his decision essentially relied on the Questionnaire dated 10 February 2012; the records of interviews with the applicant; and the documents provided by the applicant which included his application for refugee status to the United Nations High Commissioner for Refugees (UNHCR), and yet did not hold an oral hearing as requested by the applicant in order for him to explain his tribal beliefs and customs which was a key issue in substantiating his claim.

The delay in the application

10.  Before I proceed to deal with the substantive matter, I need to comment about the delay occasioned by this application.  The adjudicator’s decision was handed down on 15 November 2012.  A legal aid certificate was granted on 31 May 2013 and the case was assigned to solicitors on the same day and later to counsel on 2 July 2013.  An anonymity order was granted on 2 September 2013 and an application for leave to apply for judicial review was filed on 27 September 2013.

11.  The late filing of an application for leave to apply for judicial review due to the delay in the grant of legal aid is becoming an increasingly frequent and serious problem for the courts.  A claimant who has had his petition refused will normally, through his legal representative, make an application for legal aid to apply for judicial review of the decision.  Regrettably, processing such an application takes time and in many instances well beyond the three months time limit imposed by statute for the commencement of judicial review proceedings.  The courts treat the time limit very seriously, and for the principal reason that a judicial review involves consideration of a public law function that ought to be dealt with promptly while the matter is still current and capable of being properly addressed and resolved. Otherwise delay of the matter may have serious implications not only for the applicant but also for others who may be concerned with or affected by it.

12.  In consequence, a claimant seeking judicial review must file a claim form promptly, in any event not later than three months after the grounds to make the claim first arose.  A claim form filed after the time limit must be accompanied by an application to extend the time limit for the filing of it.  The court may refuse permission to grant leave unless it considers that there is “good reason” for extending the period, and even if it considers that there is, it may still refuse to grant leave if it believes that the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration.  See Re Ho Mei Ling [2011] 6 HKC 1, at paras 79 to 111 per Lam J (as he then was); Fung Elivira Binag v The Secretary for Home Affairs, HCAL 139/2013, unreported, 10 March 2014, at paras 11 to 13 per Au J.  Where the delay is inordinate and inexcusable a court is likely to refuse to extend time.  The onus is on the claimant to show that there is “good reason” for extending time for applying for judicial review.  This essentially means that it is too late to deal with the matter because it is likely to have adverse consequences to good administration but this depends on the gravity of what is at stake and an appropriate assessment of likelihood of the consequences being adverse to good administration.

13.  The difficulty that confronts the courts in cases like this is that the delay involved can be substantial which would normally be a bar to dealing with the application, but the reason given for the delay is because of the time taken to process the application for legal assistance which is considered necessary in order for the applicant to complete and file a claim form.  In deciding whether there is good reason for the delay, it may be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or period of inaction that has taken place.  This will obviously be considered together with all other information or material submitted by the applicant. Much depends on the particular facts and circumstances of the case as to whether there is good reason to extend time, although key considerations would include the nature of the interest at stake and the significance of the issue in relation to it, and the import that a judicial review would have in resolving the dispute in relation to the issue in question.

14.  The protracted screening of a torture claim is unfair to the trinity of interests involved.  The claimant is placed in a state of uncertainty as to his fate with restrictions on his lifestyle and living conditions.  The administration is burdened with the prolonged responsibility of screening the claim and caring for the claimant.  The community is concerned that a legitimate torture claim is dealt with promptly so as to ensure the claimant is not returned to his country of origin and permitted to stay in Hong Kong.

Processing a CAT claim

15.  A person can lodge a CAT claim to the Director for non-refoulement protection in Hong Kong under Article 3 of the Convention.  The Director, through his immigration officers, is responsible for handling torture claims made under the Convention.

16.  The system for assessing torture claimants has over time developed into two tiers. 

17.  The first tier is conducted by an immigration officer from the Torture Claim Assessment Section who would assess and determine the claim which would include holding an interview with a claimant and receiving from him a completed Questionnaire and other supporting documents or material. The officer would also assess, where appropriate, the credibility and reliability of the claimant’s statements and any supporting evidence in making the determination.

18.  The second tier would follow if the claim should fail, giving the claimant a right to petition the CE.  The power to petition the CE comes from Article 48(13) of the Basic Law which simply provides that the CE shall exercise various powers and functions including the handling of petitions and complaints.  On 3 December 2012, the operation of Part VIIC of the Immigration Ordinance, Cap 115, replaced the second tier petition to the CE with the establishment of a Torture Claims Appeal Board to hear appeals against refused CAT claims.  This applicant’s claim was dealt with under the previous second tier by way of petition to the CE.  In this case, three questions immediately come to mind.  The first question is “What is the nature of the petition in question?”  The second question is “What decision is required to be made in handling a petition?” The third question is “How is such a decision to be made?” I will try to address these questions in the course of the discussion that follows.

19.  The relevant government authority has prepared a proforma petition to be completed and lodged by an unsuccessful CAT claimant and has also issued instructions and directions in the handling of such petitions by adjudicators. See Brief Notes for Adjudicators (Torture Petitions) on Handling Petitions Lodged by Unsuccessful Torture Claimants under Article 48(13) of the Basic Law (the Brief Notes) paras 11.1, 11.2 and 15.1 and the Practice Directions for Adjudicators (Torture Petitions) (the Practice Directions) paras 6.1 and 14.1.  

20.  In a Notice of Petition to the CE against a refused CAT claim, the petitioner is reminded of the importance that he includes all details in support of his case in the Notice as a decision may be taken based on the information provided in the Notice only.  The Notice consists of six sections.  Section 1 is entitled “Personal Information”.  Section 2 is entitled “Grounds of Petition” and requires the petitioner to set out all grounds of his petition and give the reasons in support of these grounds by explaining why he disagrees with the decision of the Director on the CAT claim.  The petitioner is asked to refer to the paragraphs of the refusal letter issued by the Director when possible.  He is reminded that it is his responsibility to establish his claim and that he must ensure all information, evidence, and submissions that he wishes to be considered in support of the petition are provided to the authority together with the Notice.  Section 3 is entitled “Details of Legal Representative”.  Section 4 is entitled “Oral Hearing” and it provides that the petitioner would be notified of the details of an oral hearing if one is required otherwise the adjudicator would make a decision on his petition without further notice.  The petitioner is asked if he has any witness or witnesses whether they would require an interpreter.  Section 5 is entitled “Late Petition and Application for Extension of Time” and finally Section 6 is entitled “Declaration of Petitioner”.  From the format of the Notice of Petition and the information required to be supplied by the petitioner, the petition seeks from the CE a reconsideration of the petitioner’s CAT claim having been refused by the Director.

21.  The duty of determining a petition is performed by an adjudicator appointed by and exercising the delegated authority of the CE.  The Instrument of Delegation by the CE delegates to the person “for the time being holding the office of Adjudicator (Torture Petitions) the power and function conferred on me by Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to handle petitions which relate to claims made under Article 3 of the Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment with immediate effect.” 

22.  To facilitate the assessment by an adjudicator, the Director would be asked to forward all case documents to the adjudicator. Such case documents included the Notice of Determination, the Questionnaire, the Record of Interview(s) and any other documentary evidence submitted by the claimant during the first tier screening.  The adjudicator could also access objective information such as country information and torture claim jurisprudence and other relevant material from various independent sources, where it was deemed necessary.

23.  The adjudicator would consider the materials submitted by the parties and proceed to make his decision regarding the petition.  Where the circumstances so warranted, the adjudicator may conduct an oral hearing.  The adjudicator would review the case based on available information and decide whether to conduct an oral hearing or whether the petition was to be handled by means of a paper review.

24.  The Director in response to this review emphasised that the burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture if he was returned to the State concerned and that it was for him to make his case.  It was acknowledged that “high standards of fairness” may require the Director or the adjudicator to investigate and obtain relevant information or materials on the general country conditions depending on the facts raised and issues in a case or to make further inquiry into the facts or circumstances of the case.  It is argued that the duty to inquire on the Director or adjudicator is not endless and the claimant is obliged to make good his case.

25.  There is an overall obligation on all involved in the determination of the claim to use their best endeavours to have it properly assessed and evaluated and where necessary and appropriate to obtain relevant information or materials that are reasonably available.

26.  In the Brief Notes at paragraphs 11.1 and 11.2 in the section on Oral Hearings and paragraph 15.1 in the section on Paper Reviews the following guidance in deciding whether or not to hold an oral hearing is given:

“11.1 The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with where the Adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the Adjudicator will take into account the circumstances of the case, including but not limited to considerations that all relevant evidence has been presented and the determination of the facts shall be based on clear and cogent reasons.

11.2 An oral hearing should normally be conducted if the Adjudicator finds that:

(a) There are credibility issues crucial to the Decision of the petition which were not adequately addressed during the interviews or supported in the assessment by the Director;

(b) New evidence is raised in the petition stage that is relevant to the Decision (including any change in conditions in the Claimant’s country of origin) and clarification via correspondence is inexpedient or insufficient and that holding an oral hearing is therefore required; or

(c) An apparent breach of procedural requirement has occurred which could have limited the ability of the Claimant to establish his claim (eg inadequate interpretation, denial of the opportunity to present relevant evidence, etc.).

…

15.1 If, after considering the Notice of Petition and relevant information available including any further particulars which may have been furnished by either party, the Adjudicator is satisfied that the petition is of such a nature that it can be justly determined without an oral hearing, he may dispense with an oral hearing and proceed to decide whether or not to allow the petition.  He will make a Decision on the petition by way of a Paper Review without further notice to any party.  Although an Adjudicator may dispense with an oral hearing in the above circumstances, he must ensure that in the event the Director makes any submissions in relation to a petition, the Petitioner has at least an opportunity of responding by way of written representations.”

27.  In the Practice Directions at paragraph 6.1 in the section on Oral Hearings and paragraph 14.1 in the section on Paper Reviews an adjudicator’s general approach in deciding the CAT claim with or without an oral hearing is explained:

“6.1 An Adjudicator may, without conducting an oral hearing, consider the materials submitted by the parties and proceed to make his final Decision regarding a petition. Where the circumstances warrant, the Adjudicator may conduct an oral hearing on a petition.

…

14.1 If, after considering the Notice of Petition and relevant information available including any further particulars which may have been furnished by either party, the Adjudicator is satisfied that the petition is of such a nature that it can be justly determined without an oral hearing, he may dispense with an oral hearing and proceed to decide whether or not to allow the petition.  He will make a Decision on the petition by way of a Paper Review without further notice to any party. Although an Adjudicator may dispense with an oral hearing in the above circumstances, he must ensure that in the event the Director makes any submissions in relation to a petition, the Petitioner has at least an opportunity of responding by way of written representations.”

28.  The question of what decision is to be made under the petition and how it is handled was addressed by McWalters J (as he then was) in AM v Director of Immigration and Anor [2014] 1 HKC 416 where upon a consideration of the instructions and directions that had been issued in the handling of CAT claims he concluded that a determination of a petition involved a rehearing of the matter determined by the Director and not an appeal from the Director’s decision.  A petition in relation to a refused torture claim involved considering afresh the original decision.[1]  I agree with McWalters J’s characterisation that a determination of a torture claim petition is a rehearing on the papers with or without an oral hearing.  Accordingly, the adjudicator conducts a rehearing in order to determine whether he is satisfied on a balance of probabilities that the torture claim has or has not been made out.  The adjudicator is required to reach his own independent decision on the papers as supplemented by an oral hearing if one is held.  As explained by McWalters J, the process starts with the adjudicator being provided with all the papers that were before the Director together with any additional information or materials submitted by the petitioner at which time the adjudicator makes a preliminary decision on whether an oral hearing is required.  If he decides not to hold an oral hearing he goes on to consider the petition on the papers he has before him.

29.  In my view, the fact that the determination of the petition is a rehearing is an important factor when considering whether to hold an oral hearing and even though it is relevant that the applicant has been interviewed during the first tier process and has had the opportunity to make representations to the assessor, it must not be overlooked that the determination of the petition requires a fresh and independent decision of the claim by the adjudicator.

30.  While the burden is on the claimant to make good his claim, he must and should be given every reasonable opportunity to do so, with the concomitant requirement that his claim is properly assessed and carefully considered by the adjudicator, including whether an oral hearing should be held to satisfy this important objective.

Relevant principles applicable to a CAT claim

31.  The relevant principles in relation to determining torture claims have been extensively canvassed in the leading authority of Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 186 (CFA) which was followed by FB v Director of Immigration [2009] 2 HKLRD 346; Re RS, CACV 206/2012, 20 August 2013, unreported (CA); TK v Michael C Jenkins and Anor [2013] 1 HKC 526 (CA), ST v Betty Kwan and Anor [2013] 3 HKC 87 (CA), and AM v Director of Immigration and Anor, [2014] 1 HKC 416.  The general principles that these cases provide may be summarised as follows:

(1) A person determining a torture claim has to display high standards of fairness.

(2) This obligation is case specific and will depend on the issues and circumstances of the individual case.

(3) There is a positive duty on a person determining a torture claim to make all necessary relevant and realistic inquiry and investigate and obtain any relevant information or materials in order to properly determine any relevant fact or issue raised in the case.

(4) This necessitates a collaborative effort on those involved in the processing of a torture claim but the burden remains on the claimant to make good his or her claim. 

32.  It is generally in the context of the exercise of the power to deport and the consequential power to remain, that a torture claim is considered.  The Court of Final Appeal in Prabakar stressed that it was an issue of momentous importance for the individual concerned where his life and limb were in jeopardy and his fundamental human right not to be subject to torture was involved.  The Court comprehensively addressed the importance and requirements of “high standards of fairness” that the Director and the adjudicator must respectively employ in determining a torture claim with the principal aim that a torture claimant be given “every reasonable opportunity to establish his claim.”  To this end, the Court emphasised three factors that should be borne in mind which can be summarised as follows.  First, the difficulties of proof faced by a torture claimant.  Secondly, the positive obligation when determining a torture claim to identify issues and highlight matters that may warrant addressing.  Thirdly, having an understanding of country conditions at relevant times in order to assess the claim, and where necessary access and obtain information and materials relative to the country’s conditions from appropriate sources.  The Court illustrated the type of matters that may need to be considered when assessing a torture claim in the following passage.

“52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the county concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subject to torture on return?

(5) Is there claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?”

33.  An important decision by the English Supreme Court on the issue of oral hearings in the context of decisions by the Parole Board for the early release of prisoners was given in Osborn. Lord Reed JSC gave the leading judgment, with whom the other justices agreed, in which he made a number of important general observations and statements of principles in relation to oral hearings as a question of procedural fairness. In that case it was held, amongst other things, that although it was impossible to define exhaustively the circumstances in which an oral hearing would be necessary, they would include cases where (i) important facts were in dispute, or significant explanations or mitigations were advanced, which needed to be heard orally in order fairly to determine their credibility, or (ii) the board could not otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed, or (iii) a face-to-face encounter with the board, or questioning of those who had dealt with the prisoner, was necessary to enable the prisoner’s case to be put effectively or tested, or (iv) in the light of the prisoner’s representations, it would be unfair for a paper decision made by a single member panel to become final without an oral hearing; that the purpose of holding an oral hearing was not only to assist in the board’s decision making but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he had something useful to contribute.

34.  Lord Reed JSC gave some general guidance of the circumstances in which fairness requires an oral hearing but he prefaced his comments by stressing that what fairness requires will vary from case to case and it was impossible to lay down rules of universal application. He said in so far as is relevant:

“81. Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West [2005] 1 WLR 350, the importance of what is at stake. …

82. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. …

…

85. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted.

86. An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed…

…

88. Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have fair opportunity of establishing his prospects of success, and thus involves circular reasoning.

…

94.  … it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release.  The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal.  The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate.”

Relevant considerations to a CAT claim

35.  An adjudicator of a torture claim is required to perform an extremely difficult and sensitive task when making a decision as to the merits of the claim. What establishes a valid torture claim will require in most instances an adjudicator to consider and evaluate facts and circumstances that may be unusual or foreign to him.  In some instances, the matters under consideration may be difficult for him to understand or even comprehend. This is mainly due to the possibility that the adjudicator may not fully understand and appreciate the state of affairs and situation of the country that the claimant has left and to which he does not want to return.  This can be addressed by obtaining relevant and current information and material about the country in question, although it may still be difficult for him to assess meaningfully the social and cultural norms and values of the country.  This would require an adjudicator to be particularly sensitive to the circumstances of the claimant and of his claim when making a determination and to secure whatever assistance is reasonably available, including hearing from the claimant on these issues.

36.  In Osborn, Lord Reed JSC identified three matters that warranted consideration when addressing the principles of procedural fairness in a judicial review.  The first matter concerned the role of the court when considering whether a fair procedure was followed by the decision making body.  In the context of this case, the question is whether the applicant has been unlawfully treated by the adjudicator when the decision refusing his torture claim was taken without according him an oral hearing.  This requires the Court to determine for itself whether a fair procedure was followed by the decision maker and not merely to review the reasonableness of his judgment of what fairness required.[2]

37.  The second matter was the purpose of procedural fairness.  In determining whether an oral hearing was necessary as a matter of procedural fairness “what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of uncovering the facts, the resolution of issues and the concerns of the decision maker, due consideration being given to the interests at stake.” [3] As a matter of general principle, procedurally fair decision-making results in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested.  As observed by Lord Reed JSC, the holding of an oral hearing avoids any sense of injustice which the person who is the subject of the decision will otherwise feel by a procedure that pays due respect to him and allows him to participate in the procedure by which the decision is made when he has something relevant to say and that requires decision makers to listen.

38.  The third matter had been previously mentioned in R (West) v Parole Board [2005] 1 WLR 350,concerning institutional reluctance to hold oral hearings which may unconsciously develop with a tribunal that has the option to hold oral hearings.  This is something that needs to be guarded against by adjudicators handling CAT claims.

General principles on holding an oral hearing

39.  The Court of Appeal has most recently in ST by reference to the leading authorities, including Osborn, set out a series of general principles pertaining to the holding of oral hearings as a matter of procedural fairness in the context of screening CAT claims which can be summarised as follows:

(1) The ultimate question for deciding whether to hold an oral hearing is one of fairness (para 22);

(2) The standards or requirements of fairness may change with time: they are flexible and closely conditioned by the legal and administrative context of the decision.  In CAT claims where someone’s life and limb are in jeopardy and the fundamental human right not to be subjected to torture is involved, high standards of fairness must be observed (paras 23‑24);

(3) The applicant must be given the opportunity to make worthwhile or effective representations which is an important requirement of fairness in most if not all situations.  This often required the applicant being informed of the case that he had to answer such that he knew clearly what factors may weigh against his interests (para 25);

(4) Despite the requirement of an opportunity to make worthwhile or effective representations, there is no absolute right to an oral hearing. Whilst the whole circumstances of the applicant’s case must be looked at, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations (para 26);

(5) The presence of material factual disputes which cannot be decided on paper is very often, if not invariably, a good and sufficient reason in itself for holding an oral hearing. However, given the inherent limit to written representations, in an appropriate case the applicable standards of fairness would require the holding of an oral hearing even when all facts are agreed.  The determining question is whether an oral hearing may well contribute to achieving a just decision.  The purpose of holding an oral hearing is not only to assist the adjudicator’s decision making, but also to reflect the applicant’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.  Everything must depend on the facts and context in an individual case (paras 29-36).

40.  The Court of Appeal in ST observed that whilst it was not possible to define exhaustively the circumstances in which an oral hearing should be held, it endorsed the guidance in Osborn on when, in general, an oral hearing would be appropriate which were briefly described as follows:[4]

(1) Where important facts were in dispute or where credibility of a significant explanation would have to be further explored;

(2) Where the adjudicator could not independently assess the risk, such as where a medical opinion in relation to the applicant was needed (this specifically addressed in Osborn’s case the need for a medical opinion of the mental state of the prisoner);

(3) Where there was a tenable ground which suggested that a face-to-face encounter with the adjudicator could assist the applicant in putting his case effectively; and

(4) Where, taking into account the significant impact of the decision on the applicant, it would be unfair to make a paper decision in light of the representations made. 

Relevant considerations for an oral hearing of a CAT claim

41.  The Court of Appeal explained that the question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all the relevant circumstances and that each case would turn on its own facts and it was not desirable, nor possible, to set out exhaustively what the relevant considerations are or may be.  However, the Court emphasised that the following matters should be borne in mind by the adjudicator in most if not all cases.

(1) The interest at stake (the fundamental right to be free from torture) and grave potential consequence of the decision (life and limb are potentially at risk) is a weighty consideration in favour of holding an oral hearing (para 38). Furthermore, the high standards of fairness require the Director and the adjudicator to adopt an active role in screening a CAT claim.  They are not permitted to simply sit back and put the claimant to strict proof of his claim. Depending on the facts, it may be appropriate for them to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant, e.g. where it is readily apparent something has gone amiss or a point has obviously been overlooked or missed out. On the other hand, there may be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the claimant or those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention. If the requirements of high standards of fairness cannot be fully satisfied without an oral hearing, an oral hearing should be held (para 39);

(2) An adjudicator should ask himself whether anything material to the decision of the CAT claim and which high standards of fairness would require the claimant to be given an opportunity to be heard orally or further submit in writing.  For instance, (i) if there is any factual or legal point troubling the adjudicator which he is not sure an oral hearing or further submissions from the claimant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or further written representations; (ii) where the adjudicator is of the view certain factual or legal point (such as an important authority on a material point) is relevant to the determination which has not been dealt with adequately or at all in the petition; (iii) where material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness, particularly where the absence of such would mean the adjudicator needs to resort to deciding the issue or claim by drawing an adverse inference or by reference only to the burden of proof (paras 40-44);

(3) Bearing in the mind the flexibility of oral presentations, an adjudicator should consider whether there would be any advantage holding an oral hearing, as opposed to merely deciding the petition on paper; given the quality, depth and fullness of written submissions; whether the claimant is legally represented; and the nature of the issues and arguments involved.  Where what was in issue concerned, for instance, the drawing of inference, the application of common sense, the giving of weight, or the assessment of risk, that is, matters involving essentially evaluation and judgment, oral arguments might well be a better means of representation than written submissions.  For these are matters that might admit of more than one correct answer or may be approached from different perspectives, and matters on which reasonable persons might well differ.  It would thus be difficult for the legal representatives to anticipate, when preparing the petition, all such possible arguments and perspectives.  The adjudicator could not then be sure that he had fully grasped all these possible arguments and perspectives so that nothing would be gained by having an oral hearing. 

(4) An adjudicator should not decide the question by reference to the merits of the issue as it appears on paper or desire to save time, trouble and expense and whilst what was covered in an interview by the Director during the first tier screening and in the subsequent letter of rejection must also be seriously considered, they were by no means conclusive on the question of whether an oral hearing should be held.  An adjudicator seized of a petition at the second tier of the screening process does not sit on an appeal from the first tier decision, but is there to conduct a hearing (oral or on paper), making his own findings at first and coming to his own decision on the torture claim.  Ultimately, what is in issue is the question of fairness and what high standards of fairness require. Where the claimant had something useful to contribute, high standards of fairness required the holding of an oral hearing, for the process itself is as important as the outcome. (paras 51-54).

Background facts

42.  The applicant is a national of Cameroon.  It appears that he first arrived in Hong Kong on 21 February 2004 and thereafter he went to mainland China on three occasions remaining there for three or four months each time until his last return to Hong Kong on 28 January 2005.  He was permitted to remain in Hong Kong until 4 February 2005.  On 3 February 2005, he reported to the police the loss of his passport, money and air ticket and since then he has remained in Hong Kong.  In 2005, he made a claim for refugee status to the UNHCR which was rejected on 7 September 2005 for the main reason that his claim lacked credibility.  He appealed the decision which was refused.  On 15 April 2008, he was arrested for overstaying.  On 27 October 2010, his solicitors wrote to the Immigration Department advising that he wished to make a claim under the Convention.  After processing the claim, the Director refused it on 14 September 2012.  He appealed the decision refusing his claim by way of a petition dated 25 September 2012 to the CE.  It was reviewed by an adjudicator on the papers without hearing, who on 15 November 2012 handed down his decision dismissing his petition.

The CAT claim

43.  The applicant’s CAT claim is based on two matters.  The first matter is that he fears that if he returns to Cameroon he will be killed by village elders or driven insane through spells cast on him by witch doctors because he refused to accept the position of Fon-teh following the death of his grandfather in 2000.  A Fon-teh is a tribal leader.  The applicant had become a Christian and refused to follow the beliefs and customs of a Fon-teh.  Nevertheless, he began the initiation process to become a Fon-teh in September 2003 but later refused to complete it.  He claimed that because he learnt the secrets of the Fon-teh, this generated an animus against him by the village elders who would want him killed.  The second matter concerns a dispute he had with another person over land owned by his grandfather.  The other person he claimed is a member of the governing party in Cameroon and in 2001 or 2002, and 2003 he was arrested over the matter and beaten while in detention.  The case went to court which ruled in the applicant’s favour and found that the land was Fon-teh land.  The applicant fears this other person will seek revenge against him. 

44.  The applicant was interviewed on four occasions between March and August 2012 by an immigration officer who was assigned to assess his CAT claim.  It was ultimately rejected by the assessor on 14 September 2012.  He petitioned the rejection of his claim on the basis that the assessor was wrong to reject that the threat of harm from his tribe had nothing to do with the Cameroon government’s interest or policy and therefore did not come within the terms of the definition of torture under the Convention.  He specifically requested in his petition that concerning the credibility of his claim that he be given an oral hearing so that matters relating to Cameroonian tribal beliefs and practices could be explained to the adjudicator.

45.  The adjudicator after reviewing the papers decided that an oral hearing was not necessary.  He gave no reasons for the decision but it would appear from the history of the matter and the material he had before him, he was satisfied that he had all the information he needed to conduct a review of the petition without an oral hearing.  The adjudicator handed down his written decision on 15 November 2012 in which he provided a very comprehensive and considered analysis of the information and issues before him.  He correctly set out the relevant rules and principles that he was to apply in determining the applicant’s claim.  He reasoned his decision by first setting out the two matters that the applicant advanced in support of his claim. Under each matter he described the applicant’s account of his experiences and concerns. 

46.  The adjudicator found that the applicant’s claim was no more than speculation or suspicion and that the applicant had failed to demonstrate that there were substantial grounds for believing that he would be at risk of torture if he returned to Cameroon.  He explained the reasons for his conclusion in the analysis section of his decision which I set out in full and reads as follows: 

“Analysis

16. The Petitioner has to establish that there are substantial grounds for believing that he is at risk of torture if he returns to Cameroon. I will deal firstly with the Fon-teh issue. It is apparent that he has not been tortured and that nobody has directly threatened him with torture. All that has happened is an uncle told him that unless he took up the position of Fon-teh he would be killed or a witch doctor would put a spell on him which would drive him insane. When asked during the interview of 26^th June 2012 to elaborate on what his uncle had told him, the Petitioner said at A117:

‘He told you (sic) that if I did not leave I may be killed or go into insane. I think my uncle knew because his father was a brother of the late Fon.’

In my view this does not amount to credible evidence that he is at risk of torture if he returns to Cameroon. It amounts to speculation only.

17. The Petitioner also claims that he is at risk of torture because of his dispute with Walla over the land. There is simply no credible evidence for this. A court has ruled in the Petitioner’s favour over the matter and the case is closed. Walla’s remark that he would do whatever he could to take over the land sounds no more than an empty threat. It is not a threat to kill or torture the Petitioner. As the Petitioner put it himself during his interview on 26^th June 2012, at A139:

‘….after the court ruling Godlove [Walla] said he would do whatever he could do to own the land but I don’t know what he will do.’

This answer suggests that Walla has not threatened the Petitioner.

18. Furthermore, any perceived threat from Walla does not enjoy state or official backing. The Petitioner suggests that Walla is a member of the ruling party. Even if he is, that does not make him a government or public official.

19. Finally, if there was any genuine threat to the Petitioner (which I do not accept), then any such threat would cease to exist if he was to relocate to an area away from his home village of Bali Nyonga. The matters that the Petitioner complains of are of a local nature and there is nothing to suggest that they would be repeated if he lives elsewhere in Cameroon away from Bali Nyonga.

20. I find that the Petitioner’s claim goes no further than speculation or suspicion and that he has failed to demonstrate that there are substantial grounds for believing that he would be at risk of torture if he returns to Cameroon.”

47.  The adjudicator found that the applicant’s statements on the two matters did not amount to “credible evidence”.  This expression has been the subject of argument in this judicial review.  On the one hand, it was argued by the Director, that this simply meant that the evidence did not provide sufficient factual support for the case advanced by the applicant that he would be in danger of being subjected to torture upon his return to Cameroon.  On the other hand, it was argued by the applicant, that this meant that his evidence lacked credibility in that his account of his experiences and concerns were not believed by the adjudicator.  The arguments have to be considered in the context of whether procedural fairness would or should require an oral hearing.

Submissions

48.  Ms Grace Chow for the Director submitted that what the Court of Appeal in ST was propounding boils down to what the high standards of fairness demand on the facts and context of an individual case.  That in my view is putting it in its most general terms.  The principles stated by the Court require careful consideration and appropriate application to each individual screening of a CAT claim.

49.  Ms Chow also submitted that no one consideration that the Court held adjudicators should bear in mind when considering whether to conduct an oral hearing of the petition was conclusive or overriding, for this would mean that an oral hearing would be required in every case.  I do not think this is correct as a proposition because it will depend on the relevant facts and circumstances of the case and the significance of the consideration either alone or with others.  It was also argued that the Court qualified the requirements for an oral hearing by stating “high standards of fairness would require the claimant to be given an opportunity to be heard orally (or further in writing)” and giving examples which limited the application of the requirements.[5]  I do not agree. What the Court set out was a series of statements of principles with appropriate examples or discussion of their application.[6] It was further argued that whilst the Court pointed out the many virtues of having an oral hearing that that had to be considered against the Court reaffirming previous jurisprudence that there is no absolute right to an oral hearing.  I should point out that the Court in reaffirming this principle noted that it would depend on the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation.  Ms Chow submitted that this is just one factor or consideration but it clearly is a very important one.

50.  In the case of ST, the adjudicator referred to and relied on two Country of Origin cases which were held by the Court of Appeal to be important and relevant. They contained the principled approach towards assessing risk if being returned to Sri Lanka by reference to 12 risk factors which might make a person's return to Sri Lanka a violation of his fundamental rights and also facts and evidence about the actual situation in Sri Lanka which had not been relied upon by the petitioner except for information on Sri Lanka issued by the UNHCR which was much more general and sketchy.  The Court held that the adjudicator should have referred the petitioner or his legal representatives to the two cases and invited further submissions in order to “realign the petition” in light of the approach of those two cases given that the petitioner did not adopt the same principled approach as in the two cases nor deal with each of the 12 risk factors.[7]  

51.  In the present case, the adjudicator had not on his own volition relied upon facts or evidence or taken an approach to assessing risk which the applicant or his legal representatives did not know in advance that the adjudicator would and did rely upon or take.  It is submitted by Ms Chow that no different test nor additional evidence or list of “risk factors” was referred to or relied upon by the adjudicator that the applicant and his legal representatives were not afforded a reasonable opportunity to address.  I agree with this submission.

52.  Ms Chow also submitted that in the present case, high standards of fairness did not require an oral hearing or further submissions to “realign” the petition given that the parties had all along been adopting the same approach and considering the same evidence.  Nor was it a case that a material point of law or fact had been omitted or touched on superficially by the applicant.[8]  She argued that those matters which the applicant now says he could have given further evidence at an oral hearing were answers he had already given during the four screening interviews. Thus even on the applicant's own case there was nothing further which he could have submitted further, whether or not at an oral hearing, and which had not been said by him in the interviews.  Ms Chow submitted that the objective circumstances demonstrated that the applicant, who had been legally represented, had been given a fair opportunity during both the first and second tiers to present the whole of his case and it was not obvious or apparent that any salient point had been overlooked which needed further clarification or probing.

53.  Ms Chow also distinguished the situation in ST fromthis case.  In ST, the adjudicator drew adverse inferences against the applicant based on common sense and assumptions which the Court of Appeal held should have been probed and clarified at an oral hearing.[9]  In the present case, the adjudicator accepted the applicant's factual case as claimed by him but held that it failed to satisfy the requirements under the Convention.  Unlike in ST, the adjudicator had not assumed anything or drawn any inference against the applicant, which if he did, he ought to have invited further submissions or held an oral hearing to seek clarification or make inquiry.

54.  The adjudicator in ST purported to make an assessment of risk based on a list of “risk factors” derived from the two Country of Origin cases and essentially dismissed those risk factors without the benefit of any input from the applicant and his legal representatives.  Furthermore, the risk factors in the two cases had not been specifically drawn the attention of the applicant and his legal representatives had not been specifically drawn or touch on during the interview in the first tier screening.  In that case, the applicant had set out further evidence and submissions which he said he could have presented at an oral hearing.  The failure to hold an oral hearing in those circumstances was held to be unsatisfactory.[10]  In contrast to the present case, the matters which the applicant complained he ought to have been given the opportunity to further give evidence or clarify at an oral hearing were all matters he had already given evidence or clarified at the four screening interviews.  Ms Chow argued that in ST the Court held that it was a relevant consideration that the claimant had been interviewed in the first tier of the matters which he claimed ought to have been further dealt with in oral hearing but that would require an assessment of how the matter was dealt with during the first tier interviews and that ST the applicant was not asked in the interview about the two Country of Origin cases or the 12 risk factors.  Ms Chow argued that in such circumstances the interview was less relevant to the question of whether there should be an oral hearing at the petition stage.[11]  She submitted that the situation between the two cases was entirely different and I agree with this submission.

55.  Ms Chow submitted that applying the following various considerations set out in ST to the present case, and having regard to the high standards of fairness required, this was not a case which fairness demanded an oral hearing: (i) the nature of the decision making process being in the nature of a joint endeavour requiring cooperation and interaction but there was nothing that obviously required clarification or elaboration; (ii) the procedural history - the applicant had throughout the first and second tiers been legally represented, there had been four interviews during the first tier screening touching on the issues and matters decided by the adjudicator, there was no omission of any point of law or fact or difference in how the applicant and the adjudicator perceived the facts and issues involved; (iii) the interest at stake and importance of the decision; (iv) the issues involved - being an evaluation of the risk and a matter of judgment; and (v) how an oral hearing of the petition would affect the quality of the opportunity afforded to the applicant to make effective or worthwhile representations in these circumstances - would be simply to repeat what the applicant had already stated in the interviews, where primary facts had not been doubted or found adversely against the applicant.

56.  Mr Anthony Gormley for the applicant argued that the inadequacy of the Country of Origin information attached to the petition, warranted further investigation by the adjudicator, and this ought to have been done at an oral hearing.  He compared this case with ST on this issue which in my view was not apposite.  In ST’s case, the adjudicator extensively relied on Country of Origin information in circumstances where the applicant ought to have been allowed to make oral representations on their applicability.  In the present case, the adjudicator concluded that the applicant’s experiences did not amount to torture within the meaning of the Convention.

57.  The Country of Origin information attached to the applicant’s petition dealt with the ineffectiveness of the Cameroonian police force and the indifference of central government officials towards the self governance of Cameroonian tribes.  Mr Gormley complained that there was nothing in the materials that touched on whether or not a threat made by a tribal elder, in particular of the home village of the applicant of Bali Nyonga, posed a risk of suffering that would entitled the applicant to CAT protection.  He argued that the applicant was the only person in Hong Kong qualified to provide such specialised information.  The adjudicator in his analysis of the two matters forming the basis of the applicant’s claim found there was no risk of torture to the applicant in either matter without rejecting, and in apparent acceptance of, the applicant’s contention of the ineffectiveness of the Cameroonian police force in relation to the land dispute matter and the indifference of the central government officials towards the self‑governance of Cameroonian tribes in relation to the Fon‑teh matter.

58.  There is no substance to this complaint.  The adjudicator focused on the risk of torture to the applicant, and upon assessing the applicant’s experiences as explained by him found that they did not amount to torture and that there were no substantial grounds for believing that he would be subjected to torture if he was returned to Cameroon.

59.  The adjudicator noted that in his claim the applicant asserted that the threat about not taking up the position of Fon-teh came from his uncle but when asked about it in interview he said that he might be killed or made insane and that he thought his uncle knew because his father was a brother of the late Fon-teh.  From the applicant’s own account about the matter it was unclear as whether there was any real threat of harm against him from the tribal elders.  The adjudicator concluded that this did not amount to credible evidence and was speculation only.  There is an occasion when the adjudicator quoted extensively from the applicant’s interviews to point out contradictory statements he made about becoming a Fon-teh and being told the secrets of the tribe.  The adjudicator noted that at one stage the applicant said he was told the secrets of a Fon-teh, at another he said he might have been told the secrets, and at yet another he said he was not told the secrets.  The adjudicator further noted that when the applicant was asked about this, he said that he was told things step by step and that he learnt the secret of the blood sacrifice but not the other secrets.  Although this was highlighted in his decision, it did not feature in his analysis in concluding that the applicant’s experiences did not amount to torture and that there were no substantial grounds that he would be subjected to torture if he was returned to Cameroon.    

60.  The adjudicator also concluded that the applicant’s claim that he was at risk of torture because of his land dispute with the other person was not supported by credible evidence as he said in interview that after he got a favourable court ruling the person in question said he would do whatever he could to own the land and went on to say “but I don’t know what he will do.”  On the information and material before him, the adjudicator found that the person with whom the applicant had a land dispute was not a government or public official. 

61.  Having rejected the basis of the applicant’s claim, the adjudicator commented that even if there was a genuine threat (which he rejected) he could live elsewhere in Cameroon as the matters in question were local in nature. 

62.  Mr Gormley argued that the adjudicator seemed to have challenged the applicant’s credibility on his account as to the consequences to him by refusing to become the Fon‑teh but all that the adjudicator did in this part of his decision was to provide a descriptive narrative of his evidence which he noted in certain respects and at different times was at variance with each other.  He nevertheless accepted the applicant’s evidence and as the adjudicator concluded “it is apparent that he has not been tortured and that nobody has directly threatened him with torture.”

63.  Mr Gormley also argued that the adjudicator wrongly characterised the applicant’s exposure to the risk of torture as speculation only.  The adjudicator was correct in stating that no one threatened the applicant with torture, for all that had happened was that his uncle told him unless he took the position of Fon-teh he would be killed or a witch doctor would put a spell on him which would drive him insane.  It was when the adjudicator quoted his answer to a question to elaborate what his uncle had told him that he said the answer amounted to speculation only.  The applicant’s answer was “He told you (sic) that if I did not leave.  I may be killed or go into insane.  I think my uncle knew because his father was a brother of the late Fon.” The adjudicator, in my view, cannot be faulted for having characterised this statement as speculation.  It was open to him to do so.

64.  It has not been established by the applicant that this was a case where further specialised knowledge from him on the Country of Origin was required to assess the certainty of the threat of torture.  The adjudicator accepted the applicant’s account of the threat but given what he had said it was quite in order for the adjudicator to describe it as speculative.

Conclusion

65.  In relation to this claim, the question I have to ask myself is that did the refusal of the adjudicator to hold an oral hearing constitute a material procedural irregularity in the circumstances of this case.  In my view, it did not. 

66.  I have borne in mind the relevant principles and in particular the statement of principles highlighted in the recent case of ST in coming to my decision.  It is clear that the adjudicator carefully assessed the evidence before him and based his decision on what the claimant had said in his various interviews.  He properly reflected in his decision the tribal beliefs and customs of the applicant as he stated them to be and the issues and consequences he claimed would follow because of his refusal to take up the position of Fon‑teh.  He also properly reflected in his decision the land dispute matter and the issues in relation to it.  The adjudicator rejected the applicant’s CAT claim on the basis of the case presented by the applicant which he found was not supported by credible evidence, in that the applicant’s experiences did not amount to torture.  It is clearly apparent from the adjudicator’s analysis that he used the term “credible evidence” as meaning that the evidence fell far short of establishing a valid CAT claim.  In my assessment, it was not a case of the adjudicator disbelieving the applicant but rather a case of him accepting the applicant’s assertions, which were in some instances at variance with each other, and concluding that the applicant’s experiences did not amount torture within the meaning of Convention. 

67.  The petition did not raise any complicated issues which required elaboration in an oral hearing and there was no procedural unfairness which prevented the applicant from presenting his case adequately before the adjudicator.  It follows that the adjudicator’s decision refusing the applicant’s petition by a review of the papers without holding an oral hearing in the circumstances of this case was not unfair or wrong in law.

68.  As the applicant has failed in this application, costs should follow the event.  I make an order nisi that costs be to the Director to be taxed if not agreed and in relation to the applicant’s own costs, it should be taxed in accordance with legal aid taxation.

[1] See Kaur v Director of Immigration [2001] 1 HKC 666

[2] Osborn at para 65

[3] Osborn at para 66

[4] ST at para 33

[5] ST at para 40

[6] ST at paras 37‑50

[7] ST at paras 57-67

[8] ST at para 42

[9] ST at paras 69-70

[10] ST at paras 71-77

[11] ST at paras 53 and 77