Bikramjit Singh v. Allan J Wyeth

HCAL 68/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST

NO 68 OF 2012

______________________

______________________

______________________

J U D G M E N T

______________________

Introduction

1.The applicant is an Indian national.  In May 2009, he made a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT Claim).  His CAT Claim was refused by the Director of Immigration (the Director) on 2 August 2011 (the CAT Determination).  The applicant’s petition to the Chief Executive was dismissed by Mr Allan Wyeth, the adjudicator on 25 August 2011 (the Petition Decision).  This is the applicant’s application for judicial review seeking to quash the Petition Decision and to remit his CAT Claim to the Chief Executive or to another adjudicator for determination.

Background

2.The applicant came from India.  He first arrived in Hong Kong in May 2001 and was permitted to stay in Hong Kong as a visitor for two days.  He has not left Hong Kong since.

3.In December 2008, the applicant was arrested by police for possession of a forged Hong Kong identity card.  In March 2009, he was convicted of the above mentioned offence and an additional offence of breach of condition of stay and sentenced to a total of 12 months imprisonment.

4.In May 2009, the applicant while serving his sentence, was informed that considerations had been given to deport him.  In his “Grounds against Deportation”, the applicant stated that his life was endangered in India as his father was killed by militants and they wanted to kill him too.  The applicant then made a CAT Claim under the Convention against Torture and Other Cruel, Inhuman or Degrading or Punishment Treatment (the Convention). 

5.In June 2009, his CAT Claim was suspended because of the decision in FB & Ors v Director of Immigration & Another [2009] 1 HKC 133.

6.In August 2009, the applicant was discharged from prison and he was informed that pending the outcome of his CAT Claim, considerations had been made for the issuance of a removal order against him.  The applicant stated in his “Grounds for Non‑removal” that: “Due to political dispute of opposite party, they have already killed my father and now they are after my life.”

7.On 28 August 2009, a removal order was made against the applicant.  On 26 September 2009, the applicant was released by the Director on recognisance but required to report on regular interval.

8.The Government then introduced an enhanced mechanism for the screening of CAT Claims.  The Duty Lawyer Services (DLS) also introduced a scheme to provide legal assistance to CAT claimants.

9.In March 2010, the applicant was arrested again for using a forged identity card and breach of condition of stay, he was on this occasion sentenced to a total of 15 months imprisonment.  Upon his release from prison, the applicant was detained by the Director pending his removal.  In an interview, the applicant reiterated his fear of returning to India.

The CAT Claim screening

10.On 24 January 2011, a “Notice to Person Making a Claim under Article 3 of the Convention” (the Notice) and a blank “Questionnaire for Persons who have made Claims under Article 3 of the Convention” (the Questionnaire) were served by an officer of the Torture Claim Assessment Section (TCAS) of the Immigration Department to the applicant.  The applicant applied to the DLS for legal representation.

11.After the applicant’s release from prison, he was again required to report to the Director at regular intervals.  Between May and July 2011, despite repeated reminders to the applicant (either through DLS or himself), the applicant failed to respond and to submit any questionnaire. 

12.On 9 June 2011, the DLS ceased to act for the applicant since they had not been able to contact the applicant.  On or about 26 July 2011, the applicant’s CAT Claim was refused.  A copy of the CAT Determination was served on the applicant when he next reported to the Director on 2 August 2011.  On 8 August 2011, the applicant filed his petition.

The adjudicator’s decision

13.On 25 August 2011, the adjudicator refused the applicant’s petition on papers.  In refusing the applicant’s petition, the adjudicator noted that:

(1)   No questionnaire or record of interview had been filed in this case by the applicant.

(2)   The grounds put forward by the applicant in the “Grounds against Deportation” and “Grounds for Non‑removal” were “unparticularised”.

(3)   The grounds put forward by the applicant in the “Grounds of Petition” was confined to the applicant’s leg problem.

(4)   Taking the applicant’s claim to the highest, there was nothing to indicate that the applicant had been subjected to torture nor was there any state involvement.

14.The adjudicator then concluded that the applicant failed to discharge the burden of proof on either :

(1) torture 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; or

(2) the applicant being subjected to a foreseeable, real and personal risk of torture.

Judicial review

15.The applicant applied for judicial review against the adjudicator’s decision in:

(1) failing to afford the applicant an oral hearing and to give notice of his intention not to do so, thus procedurally unfair;

(2) failing to provide adequate reason for not holding an oral hearing, thus erring in law;

(3) adhering strictly to the Brief Notes and Practice Directions, thus surrendering the power delegated to him by the Chief Executive; and

(4) the substantive decision was unlawful on the following grounds:

(i) the decision was reached without an oral hearing and without notice of the adjudicator’s decision not to hold an oral hearing;

(ii) the adjudicator misdirected himself on burden of proof and failed to find facts;

(iii) the adjudicator misdirected himself as to the meaning of “acquiescence” and failed to consider the relevant country evidence and CG cases; and

(iv) the adjudicator made material errors of fact and failed to take into account material/relevant facts (COI reports).

Discussion

16.The applicant in this case agreed to abide by the final determination of the “system challenge” in ST v Betty Kwan & Anor [2013] 3 HKC 87.  As such, it is only the applicant’s personal circumstances that fall into consideration.

17.In ST v Betty Kwan & Anor, Mr Justice Au in paras 34 to 37 of his judgment summarised the relevant legal principles:

“34. First, as a matter of law, in the context of administrative decisions, there is no absolute right to an oral hearing. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and the nature of the decision to be made. Provided that they achieve the degree of fairness appropriate to the task, it is for the decision making bodies to decide how they will proceed and for them to decide whether an oral hearing is necessary: R v Army Board of the Defence Council ex parte Anderson [1992] QB 169 at 187 per Taylor LJ; Liu Pik Han v Hong Kong Federation of Insurers Appeal Tribunal (unrep, HCAL 50/2005, 11 July 2005) at paragraph 1(iii) per Lam J (as the learned Judge then was).

35. Second, the extent and content of the procedural fairness required under the law is to be determined by reference to the nature of the subject matter decision and the circumstances: R v Secretary of State ex parte Doody [1994] 1 AC 531, at 560D-G per Lord Mustill.

36. Third, it has recently been laid down by the Court of Appeal in TK v Jenkins that, even under the ‘high standards of fairness’ as required:

(1) A torture claimant still bears the burden of proof to make out that his case falls within the requirements under the CAT (paragraph 35). High standards of fairness do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’ (paragraph 25).

(2) Where a claimant is represented and assisted by duty lawyers, he is expected to conduct his own investigation and obtain information and materials that he requires to prove his case. The bottom line of the high standards of fairness required in the screening process boils down to fairness and commonsense (paragraph 23).

(3) Moreover, whether high standards of fairness may require the Director or the adjudicator to probe further into an answer or an omission is dependent on the facts and circumstances of each case. For instance, where it is readily apparent that something had gone amiss such as the ‘proof documents’ in Prabakar that the applicant there had mentioned, but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. There may however be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant and 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. Everything depends on the facts of each case (paragraph 24).

37. Fourth, for the determination of a CAT claim:

(1) The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.

(2)   The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country.  Additional grounds must exist to show that the individual concerned would be personally at risk.  Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

18.One can immediately see from the background of this case that save and except from repeating his claim of being threatened by some militants in India, the applicant had not put forward any materials to further his claim.  Not only did the applicant fail to provide any materials, he also did not take any steps to process his claim.  The applicant’s inaction can be seen further from the following facts:

(a) The applicant was informed by the Notice in January 2011:

(i) to complete the questionnaire and to provide supporting document within 28 days;

(ii) to request assistance from officers of Immigration Department that if he did not speak or write English and had no intention to instruct legal representative;

(iii) that any request to extend the 28 day time limit to fill in the questionnaire required full explanation;

(iv) that failing to return the questionnaire without reasonable excuse would result in the claim being determined with the available information and that the claim might be rejected for insufficient information to substantiate his claim;

(v) of the availability of DLS services to assist him in making his claim/petition;

(vi) in cases where the CAT Determination was not in his favour, he might petition to the Chief Executive and the petition would be considered by an adjudicator;

(vii) to fill in the Notice of Petition and lodge the Notice of Petition with all supporting documents within 14 days; and

(viii) whether or not to hold any hearing, the adjudicator would, having regard to the information available and the circumstances, review the merit of the CAT Determination.

It is important to note that the applicant declared that he understood the content of the Notice.  Presumably based on this understanding, the applicant then sought the assistance of the DLS on the day the Notice was served.  As a result, various documents were provided then to the DLS by officers from the Immigration Department.

(b) On 13 April 2011, warning was sent to the DLS that if the TCSA did not hear from either the DLS or the applicant on or before 20 April 2011, the applicant’s claim would proceed on the basis of the available information.  On 14 April 2011, the DLS informed TCAS that they had difficulties in contacting the applicant.  On 15 April 2011, TCAS attempted to call the applicant but was unsuccessful.  A memo was issued to the Clearance Section of the Immigration Department to ask the applicant to contact the TCAS on his next reporting.

(c) The applicant reported next on 12 May 2011. On the same day, the applicant was told by the TCAS to complete the Questionnaire and to seek DLS’s assistance.  The TCAS also updated the DLS the applicant’s contact information.

(d) When the applicant next reported on 7 June 2011, he was asked to confirm his updated contact information and to contact his case officer.  The applicant did on the very same day contact his case officer.  Again, he was told to submit the Questionnaire and to seek legal assistance from the DLS.

(e) On 14 June 2011, the DLS informed the TCSA that they had no instruction to act for the applicant as they were not able to contact him.

(f) On 17 June 2011, TCAS wrote to the applicant direct stating that without the Questionnaire, his CAT Claim might be determined on the available information.  The applicant was told again to seek advice from the DLS.

(g) The applicant reported next on 5 July 2011.

(h) On 19 July 2011, a letter was sent by the DLS to the applicant which stated that his CAT Claim might be assessed based on the existing available information and materials. Again there was no response from the applicant.  The applicant’s CAT Claim was assessed and on 2 August 2011 when the applicant reported to the Immigration Department, he was told about the result.

(i) On 8 August 2011, the applicant’s petition was received by the Petition Team of Security Bureau.  On 10 August 2011, the Petition Team was informed that the applicant had not submitted any questionnaire. Neither was there any interview record.  By a paper review, the adjudicator reviewed the applicant’s petition, he came to the conclusion as stipulated earlier.

19.The main complaint against the adjudicator’s decision not to afford the applicant with an oral hearing is that the adjudicator was fully aware of the applicant being legally unrepresented, yet he failed to apply the high standard of fairness required by law for the assessment and determination of the applicant’s CAT Claim.

20.As Mr Justice Au pointed out in para 36 of ST, even under the high standards of fairness as required, a torture claimant still bears the burden of proof to make out his claim.  High standards of fairness do not entitle the claimant, having stated a claim to simply sit back and require the Director to disprove it.

21.In the present case, the claimant did exactly that. Apart from stating some bare allegations, he just sat back.  He was urged repeatedly to submit the Questionnaire, yet he chose to ignore those reminders and warnings.  Although the screening process is described to be one of joint effort, the applicant, in my view, did not put in any effort.  I have no doubt this is the reason why the adjudicator described this application as “most unusual”.  When a claimant chooses not to be legally represented, knowing that legal service is available, he assumes the responsibility in establishing the claim.  The burden cannot simply be shifted to the adjudicator.  The legally unrepresented claimant, in circumstances as such, is expected just as well to conduct his own investigation and to obtain necessary materials.  In this case, there is no duty to keep probing or inquiring where the objective circumstances are clear that the applicant is aware of what he has to show.  It cannot be right to suggest that the less the claimant volunteers to provide, the more onerous a duty be imposed on the adjudicator.

22.It was also submitted on behalf of the applicant that the Director had ample opportunities to speak to the applicant when he did the reporting and to inform him of the possibility of not holding any oral hearing and its consequence, yet the Director failed to do so.

23.It is worth noting that on 7 June 2011, when the applicant reported to the Immigration Department, he was told to confirm his updated contact information and to contact the TCAS.  The applicant signed for his acknowledgement.  Given the reliable postal service in Hong Kong, there was no reason to doubt that correspondence sent by the TCAS would not be received by the applicant.  Also on the same date, in one telephone conversation, he was told again to submit the Questionnaire and to seek the DLS’s assistance.  Despite all those efforts, the applicant chose not to submit.

24.On 2 August 2011 when the applicant reported, he was informed about the result of his CAT Claim and to seek advice from the DLS or his legal representative for his petition to the Chief Executive.  The applicant did file his petition on 8 August 2011.  However, the applicant did not furnish any materials save and except complaints about his leg pain.  Again, the applicant chose to sit back.  It is not surprising that his petition was refused.  However, after the applicant’s petition was refused and he was detained, the applicant had no difficulty in applying for legal aid for judicial review.  These facts show that the applicant selectively chose to make use or not make use of any publicly funded legal assistance.

25.It was further submitted that the adjudicator failed to inform the applicant not to hold any open hearing.  Judging from the above undisputed facts, I cannot see any points in doing so.  Although the enhanced mechanism for the screening of CAT Claim comprises of two tiers, it is essentially one system.  Any submission to suggest that the adjudicator cannot take into account case history and past events is ludicrous.  The adjudicator has a duty to closely examine any CAT claim application, however he cannot compel cooperation if cooperation is not forthcoming.

26.On the same premises, since all the opportunities had been afforded to the applicant for legal representation, he could not complain that he was deprived of legal representation.  There is no duty on the adjudicator to ensure any CAT claimant must be legally represented in the petition stage. 

27.Before the commencement of the hearing, an application was also made to add an additional ground to the application for judicial review, namely the adjudicator failed to afford legal representation to the applicant.  I refused that application.  To impose additional obligation on the adjudicator because the applicant chose not to engage legal representation, knowing the availability of such service, not only defies common sense but also the legal principles stated.

28.In so far as the challenge on the adjudicator’s strict adherence to Brief Notes and Practice Directions is concerned, there is nothing in the present case to suggest that the adjudicator’s discretion has been fettered.  The Brief Notes and Practice Directions are not mandatory and only intended for general guidance.  There is no basis to suggest the adjudicator had acted unfairly.

29.As to the challenge on the adjudicator’s substantive decision, given what have been stated above, I confine myself to Ground 4(ii), (iii) and (iv) only.

30.In so far as Ground 4(ii) is concerned, there is nothing to suggest that the adjudicator had misdirected himself on the burden of proof.  Mr Allan Wyeth, before his retirement from the Judiciary, has been a judicial officer for many years.  He has vast experience in determining cases across a very broad spectrum.  In the absence of any indicia in the Decision, there is nothing to suggest that he erred in the burden of proof.  The fact of the matter is simply that there were little, if any, facts for the adjudicator to inquire into.  If the inquiry was a shared responsibility, there was nothing to share in this case.

31.In respect of Ground 4(iii) and 4(iv), whether the applicant will be subjected to torture upon his return to India is a matter of fact.  The adjudicator did make some fact findings:

(i) the adjudicator was not satisfied that the applicant had been subjected to torture;

(ii) the adjudicator was not satisfied that the applicant had established substantial grounds for believing he would be subjected to torture;

(iii) the adjudicator was not satisfied that there was consent or acquiescence of the state or other person acting in the official capacity; and

(iv) the adjudicator was not satisfied that the applicant would be in foreseeable, real and personal risk of being subjected to torture.

32.Given the above findings, whether the adjudicator had considered any contents and materials of either Country Guidance (CG) or Country of Origin Information (COI) is in my view immaterial, see: MM v Canada (CAT Committee decision, Communication No 332/2007, paras 7.1‑7.4 as applied in ST, supra, para 37).  Furthermore, before any adjudicator takes up his role, he is required to study CG and COI of certain relevant countries, India being one of them.  In the absence of any indicia, one can assume the adjudicator is familiar with the contents and materials of either CG or COI of any of these countries.  There are simply no substances in any of the grounds put forward by the applicant.

33.For reasons given above, the applicant’s application for judicial review is dismissed.

Mr Nigel Kat, instructed by Yip & Liu, for the applicant

The respondent, attendance excused

The 1^st interested party, attendance excused

Ms Grace Chow, counsel instructed by Department of Justice, for the 2^nd interested party