MST v. MR WILLIAM LAM, THE DEPUTY CHAIRPERSON OF THE TORTURE CLAIMS APPEAL BOARD

HCAL 117/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 117 OF 2013

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DECISION ON COSTS

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1.  This is a decision on costs in respect of the present judicial review proceedings.  On 9 October 2014, I made an order in terms of the draft consent order attached to the statement disposing of this application for judicial review by consent leaving the outstanding question of costs to be dealt with by way of written submissions to be filed by the parties.

2.  There has been some delay in the handing down of this Decision on Costs.  After receiving the written submissions, I was given to understand that there was some new development in this area of the law.  I therefore invited the parties to make further submissions before I make the final decision on costs.

Background information

3.  The Applicant first entered Hong Kong on 20 February 2003 as a visitor using a Sri Lankan passport.  On 10 March 2004, he was arrested by the police for overstaying.  Having served his sentence, he was removed to Sri Lanka on 27 March 2004 pursuant to a removal order.

4.  The Applicant entered Hong Kong again on 11 May 2004 on the strength of another Sri Lankan passport as a visitor.  On 11 August 2005, he was convicted of the offences of using a false travel document and making a false representation to an immigration assistant.

5.  Whilst serving his sentence, the Applicant raised a torture claim in writing on 6 May 2006.  On 13 May 2006, he was discharged from prison and was referred to the Immigration Department.  A removal order was made against him on 29 June 2006, the appeal of which was dismissed on 5 July 2006.

6.  The Applicant was subsequently convicted of the offence of assaulting occasioning actual bodily harm for fighting with another detainee inside the Castle Peak Bay Immigration Centre.  He was discharged from prison on 28 October 2006.  In the meantime, his torture claim was screened under the screening mechanism prior to the case of FB v Director of Immigration & Anor[1]. The Applicant was released on recognizance on 3 May 2007 and his torture claim was refused on 30 June 2008.

7.  Following the judgment of FB, an enhanced screening mechanism was put into place in 2009, and the Applicant was informed of his entitlement to a re-screening of his torture claim by letter dated 18 June 2009.

8.  On 30 April 2012, with the assistance of an interpreter, a “Notice to Person Making a Claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (“the Notice”), a blank “Questionnaire for Persons who have made Claims under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (“the Questionnaire”), a Leaflet (“the Leaflet”) of the Duty Lawyer Service (“DLS”) and the Applicant’s previous screening record were served on the Applicant.

9.  The Applicant’s legal representative repeatedly requested that the screening process be adjourned.  These requests were not acceded to.  On 30 August 2012, as there was no return of the completed Questionnaire, the Director of Immigration (“the Director”) decided to proceed to determine his claim on the basis of available information.

10.  On 13 November 2012, the Director refused the Applicant’s torture claim.

11.  On 10 January 2013, the Applicant’s petition or appeal was dismissed by the adjudicator (“the Adjudicator”) of the Torture Claims Appeal Board (“the Board”), Mr William Lam, without a hearing.

12.  On 1 August 2013, the Applicant filed the application for leave to apply for judicial review to challenge the said decision by the Adjudicator (“the Decision”), on the grounds of, inter alia, failure to conduct an oral hearing.

13.  Following two major decisions by the Court of Final Appeal in 2012 and 2013, Edward Wilson Ubamaka v Director of Immigration[2] and C v Director of Immigration[3], there were a great number of cases concerning the absence of a screening process dealing with grounds for humanitarian protection other than apprehended torture.  After the handing down of these decisions, the Government then considered whether to implement a unified screening mechanism (“USM”) to screen torture claimants on all possible torture and humanitarian grounds.

14.  The court then directed a direction hearing to determine whether the present proceedings should be adjourned pending the possible implementation of the new USM.  The direction hearing was held on 14 January 2014.  Despite the prior notification, neither the Board nor the Director attended the hearing.  Leave to apply for judicial review was granted in that hearing.

15.  On 11 February 2014, the Board informed the court that it intended to take a neutral stance in the judicial review proceedings.

16.  On 3 March 2013, the new USM came into operation with a function of screening torture claimants on all possible torture and humanitarian grounds.

17.  On 19 May 2014, the substantive hearing date of the present judicial review was fixed for 15 October 2014.  On 19 August 2014, the Adjudicator through the Board wrote to the court requesting clarification if attendance was required.  Following that, the Director was notified of the substantive hearing on 1 September 2014.  On 12 September 2014, the Director, in the capacity as interested party, informed the court that he adopted a neutral stance and was prepared to facilitate the making of a consent order to dispose of the judicial review proceedings by quashing the Decision, so that the Applicant could be rescreened under the new USM.  Following some correspondence between the parties, I made the order to quash the Decision in open court on 9 October 2014.

18.  There is no dispute between the parties that there should be no order as to costs vis-à-vis the Applicant and the Director, and so the court only has to consider the question of costs vis-à-vis the Applicant and the Adjudicator or the Board.

Legal principles

19.  As a matter of general practice for judicial review against decision of an inferior tribunal exercising an appeal or review function, where the inferior tribunal remains neutral and does not contest the judicial review, the usual rule is to make no order for costs vis-à-vis the applicant and the tribunal, with the exception that there was a flagrant instance of improper behaviour, or the tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings.  Such principle was affirmed by the Court of Appeal in Orrico, Philippe & Anor v Municipal Services Appeals Board & Anor[4].

20.  As to the criteria for flagrant improper behaviour, the Court of Appeal said the following:

“41. We do not think it would be helpful for us to elaborate on the test of flagrant improper behaviour. Suffices for us to reiterate that the standard is the same as the test laid down by Parker CJ in R v Liverpool Justice, ex parte Roberts [1960] 2 All ER 384:

‘ ... it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.’

42. We agree that the criteria are stringent and not all obvious or even blatant errors on the part of a tribunal come within this test.  After all, even the most conscientious and competent decision-maker would have made mistakes which with the benefit of hindsight, can be described as obvious or blatant.  ... ... ...”

21.  In Orrico, the tribunal making the decision was the Municipal Services Appeals Board, but Court of Appeal applied the same principle on the issue of costs when a torture claimant was challenging a decision made by the Board in KMM v The Torture Claim Appeal Board & Anor[5].

The merits of the Applicant’s request for an award of costs against the Adjudicator or the Board

22.  The Applicant submits that the Adjudicator had failed to observe minimum standards of fairness by denying an oral hearing to the Applicant, and as a result the Adjudicator had committed flagrant and basic errors.  Mr Dykes, SC, counsel for the Applicant, submits that the obvious exasperation of the Adjudicator with the Applicant did not excuse or in any way validate or excuse the manifest unfairness of doing without any hearing, i.e. oral or further written representations or warning of no further hearing.  This indicates improper or flagrant behaviour which resulted in the Applicant being denied minimum standards of fairness.

23.  According to Mr Dykes, the Adjudicator’s duty to secure the necessary high standards of fairness could have been easily discharged had he taken any single one of the following steps:

(i)    invited the Applicant to attend an oral hearing;

(ii)   invited the Applicant to file written representations in lieu of an oral hearing; or

(iii)  notified the Applicant that without supplying further particulars, the Adjudicator would rely on the previous information provided to the Director to consider his petition or appeal.

24.  Mr Dykes complains that the Adjudicator should, in the very least, have notified the Applicant that a paper disposal would be proceeded with in the absence of further submissions or information.  The taking of such “elementary step” was essential to ensure that the Adjudicator had a sound basis to justify his decision to determine the appeal without an oral hearing.  It was probable that the Applicant would have something to say about his case.  There was no screening interview of the Applicant by the Director at the first stage of the screening of his torture claim and as such, the factual background to and any issues of concern or requiring clarification as to the Applicant’s torture claim had not been canvassed with the Applicant.  The insufficiency of details as to the ground of petition and the unresolved status of legal representation of the Applicant on petition warranted consideration in accordance with the high standards of fairness as material issues had not been addressed by the Applicant.  Further, the previous materials supplied by the Applicant involved serious allegations which ought to be properly investigated by the Adjudicator.

25.  Mr Dykes also submits that the reason why the Adjudicator ignored the simple elementary safeguards was that he blamed the unjustified and repeated applications for adjournment on the improper advice from the Applicant’s lawyers.  However, such reason is not valid because the delay was caused by the successful judicial review challenges against the procedural failings of the previous screening methods, including whether legal advisors could attend the hearings.  Further, even assuming that the Applicant had received ill-conceived legal advice, the Adjudicator was not entitled to visit the consequences of such mistakes on the Applicant’s claim for protection against torture.

26.  In my judgment, all these complaints are not sufficient to meet the high threshold of establishing flagrant instance of improper behaviour on the part of the Adjudicator.  Whether the Applicant liked it or not, the Adjudicator had made the decisions not to have any further adjournment of the appeal proceedings.  Despite such decisions, the Applicant failed to supply further information in support of his torture claim.  The Adjudicator therefore took the view that the Applicant had waived his right to supply further information to the Board and proceeded to determine the appeal.

27.  Hong Kong is still in the development phase of the jurisprudence relating to torture claims, and the Director and the Board are facing tremendous pressure both in handling the vast number of torture claims and in conducting the screening process in accordance with the latest standard set by the courts.  Apart from screening the applicants for their torture claims, the Court of Final Appeal’s decisions also required the Government or the Director to screen the applicants for all other humanitarian grounds under other relevant international conventions.

28.  At the time of the Decision, there was also uncertainty in the law as to whether the Board had to conduct oral hearing in every case to determine the appeal of torture claim, in particular when the adjudicator, in considering the appeal, was prepared to put aside issues of credibility and to accept the factual version of the torture claimant in its highest (which was actually what happened in the present case).  It was only in the case of ST v Betty Kwan[6] that the Court of Appeal, in June 2014, held that, even in the absence of factual disputes, the Board, in order to achieve the high standards of fairness, should still hold oral hearings in most cases to determine the appeals.

29.  The Decision by the Adjudicator was made before the handing down of the decision of ST v Betty Kwan[7]. The determination by the Adjudicator in not holding an oral hearing or notifying the Applicant of his decision to proceed with the appeal without an oral hearing or further information might be wrong, but it cannot be said to be an obvious or blatant error.  Using the words of the Court of Appeal in Orrico, Philippe & Anor v Municipal Services Appeals Board & Anor[8], the errors made by the Adjudicator in the present case “are not different in nature from errors which regrettably beset decisions from tribunal or appeal boards from time to time”.  Even the most conscientious and competent decision-maker would have made such kind of mistakes, and I do not accept that the gravity of the errors qualify as flagrant improper behaviour.  The Applicant’s case comes nowhere near to meeting the high threshold.

30.  For the above reasons, the usual rule of no order as to costs should apply.  I therefore order that, save the Applicant’s own costs to be taxed in accordance with Legal Aid Regulations, there be no order as to costs of these proceedings.