M v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 155/2017
[2018] HKCFI 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 155 OF 2017

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  11 December 2017

Date of Judgment:  19 January 2018

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J U D G M E N T

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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”)/Adjudicator of the Non-Refoulement Claims Petition Office (“the adjudicator”) made on 6 January 2017 dismissing and refusing the applicant’s appeal/petition.

Background

2.The applicant is a Kenyan national who arrived in Hong Kong on 19 October 2007 and then proceeded to travel to and from mainland China for several months.  He arrived again in Hong Kong from mainland China on 5 September 2008 and was given a visitor’s visa valid for three months but overstayed in Hong Kong from 5 December 2008.  However, he was arrested by the police one day later and then lodged a torture claim on 9 December 2008.  That claim was then expanded to include non-refoulement protection on all applicable grounds in March 2014 under the Unified Screening Mechanism.  That claim was dismissed by the Director of Immigration (“the Director”) on 29 January 2015.  The applicant lodged an appeal/petition to the TCAB.

3.The applicant was legally represented at his appeal and a hearing date was set down for 3 December 2015.  An application to adjourn that hearing date was made by the applicant’s legal representative by letter on several occasions and it was refused on several occasions by the adjudicator of the TCAB; the last occasion being on the actual date of the hearing.  A decision rejecting the appeal/petition was dated 6 January 2017.  The applicant filed a notice of application for leave to apply for judicial review on 24 April 2017.  I granted leave on the papers ex parte.

4.At the Judicial Review hearing on 11 December 2017, I ruled in the applicant’s favour after hearing from Counsels for the applicant and the interested party.  I said I would hand down my reasons for my orders at a later date.  These are my reasons below.

Extension of time, Order 53 Rule 4(1)

5.An application for leave should be made within three months of the TCAB’s decision.  The legal principles for extension of time have been set out in AW v Director of Immigration & anor CACV 63/2015, 3 November 2015, §27, “while in the public law field, it is essential that the courts should scrutinise with care any delay in making an application… As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled”.  Significant factors that require consideration include the length of delay, the explanation offered for the delay, the merits of the substantive application and the question of prejudice to the applicant as well as public administration.

6.In this case, from the papers it was obvious the applicant was clearly not sitting back; he was proactively pursuing this application.  The delay of just over two weeks was minimal and of little prejudice.  Moreover, as I went on to decide, his application had merits.  Therefore, an extension of time for the application for leave to apply for judicial review was granted.

Chronology approaching the appeal hearing of 3^rd December 2015

7.The 1^st attempt to adjourn the appeal hearing was by letter dated 23 November 2015 when the applicant’s duty lawyer wrote to the TCAB to explain the applicant’s hip replacement surgery scheduled for 15 January 2016.  The letter set out the applicant’s medical condition and history leading to the necessity of hip replacement surgery.  It specified what drugs the applicant was prescribed on a daily basis and explained the applicant was experiencing a great deal of pain whether he was sitting, standing, walking or in any position.  This meant he would have difficulty concentrating during the course of the hearing scheduled for 3 December. Medical documents from Queen Mary Hospital, Matilda International Hospital, Dr Christopher Tong (a specialist in orthopaedics and traumatology) and a medical report from Dr Jason Brockwell, the surgeon performing the operation was attached to the letter.  The adjudicator replied on 24 November and directed that “unless there is medical certification that the appellant is confined and is unable to walk an adjournment is not granted.”

8.On 27 November the applicant’s duty lawyer wrote a 2^nd letter and a 2^nd application requesting the adjudicator to reconsider the adjournment to accommodate the applicant’s medical condition, to enable the applicant to fully participate in the oral hearing and the decision which had important consequences for him, to allow the applicant an opportunity to clarify matters not fully addressed before the Director and to address credibility findings made by the Director.  In particular, from the grounds of appeal it was clear there was new evidence and information. Therefore, contrary to the adjudicator’s view expressed in his letter, it was imperative for the applicant to attend the hearing.  The adjudicator replied on 30 November and declined to reconsider the request to adjourn.

9.On 30 November the applicant’s duty lawyer wrote again to the adjudicator and attached a medical report from Dr Jason Brockwell dated that same day indicating to the adjudicator that the applicant would have recovered sufficiently from his hip operation by March 2016.  This would mean an adjournment of only about four months and by then the doctor opined the applicant would have recovered, would no longer be taking pain medication, would be able to sleep properly and therefore participate more effectively in his appeal.  The adjudicator replied the following day and took the view Dr Brockwell only made a general comment on the medical conditions of arthritis but did not make a specific statement that the applicant was unable to attend the hearing.  The adjudicator wrote that even if the applicant was unable to walk he could be transported by wheelchair.  Therefore, the application for adjournment was not granted.

10.The applicant’s duty lawyer wrote again on 2 December  attaching a further medical report from Dr Jason Brockwell who clarified his opinion and stated that he did not consider the applicant medically fit to attend the appeal hearing.  He felt the applicant’s medication had side‑effects which affected concentration and memory. The applicant was in pain whether he was walking, sitting and that the pain tended to build with time and could be extremely distressing.  The adjudicator replied and directed that unless Dr Brockwell attended the hearing to be cross-examined, the adjudicator would not accept his opinion.

11.Dr Brockwell sent his CV in advance of the hearing to the adjudicator and made himself available to attend the hearing the following day with the applicant and from the transcript he was cross-examined by the adjudicator.  On this occasion, a representative from the Director of Immigration also personally attended. He put questions to the surgeon and then indicated he had no objection to the adjournment requested.  After Dr Brockwell was cross-examined by the adjudicator, the adjudicator again refused the application to adjourn.  For medical reasons the applicant declined to continue to attend the hearing further so it concluded.  The adjudicator handed down his reasons for dismissing the appeal 13 months later.

Grounds of Review

12.The amended notice of application removed the Director as a respondent and made him an interested party.  The amended notice sets out three grounds;

(1) procedural unfairness; the refusal of the adjudicator to adjourn the oral hearing;

(2) error in law; the wrong test was applied to the persecution risk and a failure to consider whether the applicant faced a risk of persecution; and

(3) irrationality; failing to consider/place weight on the applicant’s country of origin material submitted and/or selectively placing weight on irrelevant information.

13.The applicant applied for leave to judicial review only the decision of the TCAB and its primary ground was one based on procedural fairness.  The adjudicator’s decision to refuse the application to adjourn the appeal hearing was unfair, irrational and did not accord with high standards of fairness required of the adjudicator.  To demonstrate this the applicant relied on correspondence between his legal representative applying for the adjournment and the adjudicator rejecting the adjournment.  The applicant also relied on the audio recording and transcript of the adjournment application made on the morning of the hearing.  The applicant also relies on the fact the Director of Immigration at no stage objected to the application to adjourn the hearing.

14.Counsel for the applicant, Mr Wong submitted that if the court found merit in ground 1 then further analysis of the adjudicator’s decision-making process was meaningless because it was done without the meaningful participation of the applicant.  He submitted that the Court only needed to go on to consider the merits of the other grounds if it found the adjudicator’s reasons to refuse the adjournment unimpeachable.

Ground 1 - High standards of fairness

15.Where any applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision.  This most frequently referred to standard applies to the assessment undertaken by a decision-maker assessing a torture claim.  This approach for the adjudicator is paramount and cannot be stressed enough.  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.”

16.In the authority of ex parte Doody referred to in paragraph 43of Prabakar, Lord Mustill set out some principles of fairness to be adhered to in public law decisions and that included a principle that fairness will very often require a person who may be adversely affected by the decision to have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to securing its modification; or both.  Consultation and the right to make representations are basic aspects of procedural fairness in public law.

17.This applicant was trying to say, when asking for an adjournment that he was not in a fit state to attend the hearing on the 3^rd December.  He was scheduled to have a hip replacement operation several weeks after that date and was in constant pain and discomfort which meant he would have had difficulty concentrating on the serious matter of his appeal.  To the applicant his claim was a momentous issue; a matter of life and limb.  His legal representative made it clear that the applicant himself felt in his present physical state that he was unable to fully and meaningfully participate during the hearing because of the constant and nagging pain.

18.His surgeon, Dr Brockwell wrote a letter and medical reports to that same effect.  He gave an analogy of a school student in a similar situation having to sit an exam (although less is at stake) being unable to concentrate on the matter at hand.  Dr Brockwell also gave evidence of personal experience of having hip pain and it being very difficult to cope with.  He told the adjudicator that it becomes more and more painful and “very quickly one can think of nothing else but ending the proceedings and trying to do something to relieve the pain.  It’s not the best situation in which to be in if one has to concentrate on an important piece of work which may take some time.”

19.Mr Wong submitted that the process for the conduct of the appeal/petition has often been described as a joint endeavour and a rehearing.  The adjudicator obviously felt an oral hearing was necessary because he scheduled a hearing; it was not an appeal/petition that could have been determined by written representation.  It was not in dispute credibility was an issue and therefore the applicant must be fit and able to give evidence and withstand cross-examination.  This was the crux of the adjournment and of the utmost concern to the applicant.  It was made clear that this was the applicant’s concern in correspondence to the adjudicator.

20.Was it unfair to refuse the adjournment given the high standards of fairness required?  Mr Wong submitted that that same standard of fairness should apply to the decision whether to allow the adjournment in order to ensure there is no deficiency in the process that the applicant has undergone which has ultimately resulted in this appeal/claim being refused.

21.He emphasised that the test to be applied in considering whether the adjournment should have been granted was whether it was unfair to the applicant; fairness was the criterion.  He relied on Kelechi Emanuel Nwaigwe v Secretary of State for the Home Department (2014) UKUT 418, paras 7-8;

“If a tribunal refuses to accede 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.”

22.It was submitted the adjudicator failed to take into account material considerations; the evidence of the expert witness whose expertise was not disputed.  The doctor’s assessment was that the applicant’s hip arthritis meant he was in constant pain and discomfort.  His condition was severe and he suffered from long-term effects of chronic sleep deprivation as a result of that pain.  He is chronically tired and unable to perform properly.  His operation was long overdue.  He would be fit and well within three‑odd months; the adjournment would only be until March 2016.  The doctor described the painkillers the applicant had been prescribed and the possible short‑term side‑effects. The adjudicator made no mention of these opinions when refusing to adjourn the hearing that morning.

23.It was submitted the adjudicator also failed to take into account the importance of an oral hearing and how vital it is for and to the applicant to be physically and medically fit at the hearing; he who had to give evidence and answer questions on possibly critical matters.  Since the applicant has made this an issue then all the more important for it to be addressed properly to ensure the high standards of fairness required were met.  It was submitted that despite this, the importance of a medically fit applicant capable of giving evidence was ignored by the adjudicator.  He indicated as much on the day of the hearing according to the transcript.  He said “…the facts of the claimants are, basically, clear to everyone and it’s in the file, so all you need to do is to ask him if there is anything to add or if he has discovered any errors in the answers he has provided to Immigration before that he wants to change.  That’s all I myself will be interested to know.…… After that, Mr M [the applicant] is free to go and do whatever he likes.  I don’t want to keep him unnecessary long here.”  See Exhibit SBCP-1 transcript page 15 K-Q.

24.It is clear from the transcript the adjudicator cross-examined Dr Brockwell, who is not a pharmacist, on the significance of the dosage of the prescription drug tramadol.  More importantly the adjudicator appears to rely on his own purported expertise relating to drug dosage to determine the applicant’s medical fitness.  Having read the transcript Dr Brockwell explains that he did not prescribe the medication because medication had already been prescribed by the time the applicant became his patient.  He says that had the applicant not already got medication he would have prescribed similar medication.

25.Dr Brockwell explained the side-effects of the drugs can affect memory and concentration but the main thrust of his opinion as to why the applicant was not medically fit to attend a hearing of this nature was because it was a combination of the side-effect of the drugs, the persistent nagging pain and exhaustion from a lack of a good sleep; together they meant the applicant could be prejudiced if an adjournment was not forthcoming.

26.The adjudicator gave reasons why he rejected Dr Brockwell’s evidence in his decision.  He accuses the doctor of suddenly changing his opinion during cross‑examination and making bold assertions that were unable to support an adjournment.  However, that assessment is not fair; having read the transcript Dr Brockwell does not suddenly change his opinion nor does he make assertions that he cannot support.  He explains why he makes the statements he does in his correspondence he was asked to write to the adjudicator.  He also explains why he said during the hearing that the applicant was not fit for anything; the applicant has not slept properly in two years and has been in constant pain, taking the most powerful legal painkillers a doctor can give him therefore he is not fit.

27.Mr Wong submits there has been a failure to apply the proper test; was it fair to proceed with the hearing if the applicant was unfit to participate meaningfully?  Mr Wong submits the adjudicator’s comments, line of questioning and correspondence all indicated his view that because the applicant was physically able to be present at the hearing ie “there is no evidence that it is impossible for him to attend” (letter dated 2 December 2015) then no adjournment is warranted.  The submission was that this approach must be unfair, irrational and in making that determination high standards of fairness have not been met. In short, the proper test was not addressed and considered.

Conclusion

28.I agreed with Mr Wong that the tone and approach in the correspondence and hearing did not demonstrate the adjudicator was considering the applicant’s well-being and opportunity to make representations on his own behalf in light of the well‑documented medical condition he was suffering from.  If the tribunal maintained high standards of fairness and the application to adjourn had been considered fairly then the application to adjourn, reasons offered and the numerous initial medical reports should have been enough to allow the adjournment.  The assurance the adjournment was only to be until March 2016 plus the fact the Director of Immigration did not object to it should have been enough to allow the adjournment. It was only fair to the applicant, on what was presented to the adjudicator to allow the adjournment. I found merit in ground 1 and therefore quashed the decision of the TCAB dated 6 January 2017.  That hearing should have been adjourned, it should not have proceeded that day in the absence of the applicant and been determined 13 months later.

29.In light of my finding above I need not go into the merits of grounds 2 and 3.  If I did, there may also be merit in Mr Wong’s submission that the adjudicator had failed to consider and/or analyse and/or understand the basis of the applicant’s claim being a fear of persecution because of political opinions expressed.  There may be merit in Mr Wong’s submission that the adjudicator mistakenly believes that the test under the persecution risk is virtually the same as under BOR 3.  As success with ground 1 will suffice for the applicant’s purposes I do not intend to further analyse the decision.

Order and Costs

30.I made the following orders on 11 December 2017;

1. an extension of time for the application for leave to apply for judicial review;

2. leave to the applicant to amend Form 86;

3. leave to the applicant to file his third affirmation;

4. leave to the applicant to file the affirmation of Sirvent Bruno Claude Philippe;

5. an order of certiorari quashing the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office dated 6 January 2017 refusing the applicant’s appeal/petition against the Director’s decision (“the appeal”) and remit the appeal back to the TCAB for reconsideration by another adjudicator.  Given the time lag since the adjournment was refused, the appeal determination should be reconsidered on an expedited basis;

6. the applicant’s BOR 2 appeal/petition, yet to be heard, should be heard together with the appeal by the same adjudicator; and

7. the cost of this application to be borne by the Director of Immigration (interested party), to be taxed if not agreed.  The applicant’s own costs to be also taxed in accordance with Legal Aid Regulations.

Mr. Albert N B Wong, instructed by Daly, Ho & Associates, for the Applicant

The Respondent, attendance excused

Ms Grace Chow, instructed by the Department of Justice, for the Interested Party